Hong Yuan Constructions Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Hong Yuan Constructions Pty Ltd (the applicant) for review of a decision to refuse to approve its nomination for a Subclass 457 (Temporary Work (Skilled)) visa. The nominated occupation was Procurement Manager. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nominated occupation of Procurement Manager remained an eligible occupation for the purposes of a Subclass 457 visa nomination, and whether the applicant had provided all necessary information within the stipulated timeframes. The Tribunal had initially requested information from the applicant regarding the nominated occupation by 6 April 2017, later extending this deadline to 21 April 2017, with a warning that failure to comply could result in a decision being made without further information and the loss of entitlement to appear. Subsequently, the Tribunal notified the applicant of significant changes to the skilled occupations list, specifically the removal of Procurement Manager, and invited further submissions by 5 May 2017.

The Tribunal reasoned that the nominated occupation of Procurement Manager had been removed from the list of eligible skilled occupations prior to the Tribunal's decision. Despite being granted extensions and specific invitations to provide information and submissions, the applicant failed to provide the requested details by the final deadline of 5 May 2017. The applicant's submissions indicated an assumption that the request for information was withdrawn and expressed confidence in the occupation's eventual reinstatement, but did not address the current eligibility criteria. The Tribunal applied Regulation 2.72 of the Migration Regulations 1994, which requires the nominated occupation to correspond to an occupation specified by the Minister in an instrument in writing. As the Procurement Manager was no longer on the eligible list at the time of the decision, this criterion was not met.

Consequently, the Tribunal affirmed the decision to refuse the nomination.