Joshi (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Joshi, who sought review of a decision not to grant him a Temporary Business Entry (Class UC) visa, specifically a Subclass 457 (Temporary Work (Skilled)) visa. The dispute centred on the validity of a nomination for the occupation of Retail Manager (General) after the nominator ceased operations and had its Australian Business Number (ABN) cancelled. The applicant relied on evidence provided to the Tribunal and previously to the department, including written submissions and supporting documentation.

The primary legal issue before the Tribunal was whether the applicant's nomination remained valid for the purposes of his Subclass 457 visa application, particularly in light of legislative changes that repealed and replaced the criteria for Subclass 457 visa nominations and closed the visa to new applications. The Tribunal was required to determine the applicability of saving provisions introduced by the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 to a nomination that had already ceased to be in effect prior to the commencement of those regulations and prior to the applicant seeking review of the visa refusal.

The Tribunal reasoned that while saving provisions, such as subclause 6704(15), were intended to extend the validity of nominations during AAT review, they only applied if the nomination had not already ceased before the amending regulations commenced. In this case, the nomination was refused on 9 March 2017, prior to the commencement of the Amending Regulations on 18 March 2018, and had ceased by operation of regulation 2.72(2)(b) before the applicant sought review. The Tribunal concluded that the applicant should have been aware that a new nomination was required once the original nomination ceased, irrespective of the changes to the Subclass 457 visa program.

Consequently, the Tribunal found that the requirements for the standard business sponsor stream of the visa had not been met. As no claims were made in respect of other streams and there was no evidence that the applicant could satisfy their specific criteria, the Tribunal affirmed the decision not to grant the Subclass 457 visa.