GMS Petroleum (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute between GMS Petroleum and the Department of Home Affairs concerning a nomination application. The core of the disagreement was whether GMS Petroleum's nomination for a proposed occupation, lodged before 18 March 2018, should be approved, particularly given that the proposed visa applicant did not apply for the Subclass 457 visa before that date.

The legal issue before the Tribunal was to determine if GMS Petroleum met the criteria for approval of its nomination under section 140GB(2) of the Migration Regulations 1994, in light of the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. These amendments repealed the Subclass 457 visa and significantly altered the relevant regulations, creating a situation where, for certain applications lodged before the repeal but where the visa application was not, there were no prescribed criteria against which the nomination could be assessed.

The Tribunal reasoned that the Amending Regulations, coupled with a binding guidance decision (B&G Green Trading Pty Ltd (Migration) [2018] AATA 3190), dictated the outcome. The Tribunal had been directed to comply with this guidance decision when specific circumstances were present: a nomination for a proposed occupation lodged before 18 March 2018, in relation to a proposed Subclass 457 visa applicant who had not applied for that visa before 18 March 2018. The Tribunal found that GMS Petroleum's nomination met all these criteria. Despite GMS Petroleum's submission that its case was distinguishable due to the genuineness of the position and business needs, the Tribunal concluded that the facts and circumstances were the same as those in the guidance decision.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal found that, due to the repeal of the Subclass 457 visa and the absence of prescribed criteria for assessment under the amended regulations for this specific scenario, the nomination could not be approved.