FUDACHI.COM PTY LTD (Migration)

This matter concerned an application by FUDACHI.COM PTY LTD for approval of a nomination for a Subclass 457 visa. The dispute before the Tribunal was whether the applicant met the criteria for the approval of the nomination, specifically concerning the nominated occupation of "Marketing Specialist" and the identity of the proposed visa holder. The decision was made by Catherine Carney-Orsborn, a Member of the Tribunal.

The legal issues before the Tribunal were whether the nominated occupation and its corresponding code complied with the requirements of the Migration Regulations 1994, specifically regulation 2.72(10)(aa), and whether the sponsor had adequately identified the visa holder who would work in the nominated occupation, as required by regulation 2.72(5). The Tribunal also considered the legislative change that abolished the Subclass 457 visa after 18 March 2018 and its impact on the nominee's ability to obtain such a visa.

The Tribunal's reasoning focused on two primary grounds for refusing the nomination. Firstly, it found that regulation 2.72(5) was not met because the nominee, Yafu Xu, had not lodged an application for a Subclass 457 visa, and due to legislative changes, would not be able to do so. Consequently, the Tribunal could not be satisfied that the nominee would work in the nominated occupation. Secondly, while the nominated occupation "Marketing Specialist" was listed in the relevant instrument (IMMI 17/060), the Tribunal noted that it was subject to applicability conditions, though it did not make a finding on whether these conditions were met.

Ultimately, the Tribunal affirmed the decision to refuse the nomination. It concluded that the applicant had not satisfied the applicable criteria for the nomination to be approved, primarily due to the inability of the identified nominee to obtain the relevant visa.