Guidoux (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by the applicant concerning the refusal of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant had sought to enter Australia as a Café or Restaurant Manager, relying on a nomination made by Valefort Pty Ltd. The core of the dispute revolved around the validity of this nomination in light of legislative changes and the cessation of the nomination's approval.

The primary legal issue before the Tribunal was whether the applicant met the requirements of subclause 457.223(4)(a) of the Migration Regulations 1994. This subclause mandates that there must be an approved nomination for the applicant's occupation by a standard business sponsor, and that this nomination must not have ceased. The Tribunal also considered whether the applicant had been afforded sufficient notice regarding this determinative issue and whether the circumstances allowed for a decision to be made on the available information.

The Tribunal reasoned that the nomination, initially approved on 15 June 2016, had ceased on 15 June 2017 by operation of regulation 2.75(2)(b). Crucially, legislative amendments effective from 18 March 2018 meant that the sponsoring employer could no longer lodge a nomination capable of supporting a Subclass 457 visa application. The Tribunal found that the applicant had been notified of the importance of subclause 457.223(4)(a) through an invitation to provide further information. As the nomination had ceased before the relevant legislative changes and no current approved nomination existed, the applicant failed to satisfy this essential criterion. Consequently, the Tribunal determined it was unnecessary to consider other criteria, such as Public Interest Criterion 4020.

The Tribunal affirmed the decision to refuse the visa application for the primary applicant. As the primary applicant did not meet the visa requirements, the applications for the secondary applicants, who were family members, were also affirmed. The Tribunal concluded that the requirements for the standard business sponsor stream had not been met.