KAYASTHA (Migration)

The Administrative Appeals Tribunal considered the case of Kayastha, concerning an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)) visa, under the standard business sponsorship stream. The dispute arose because the approval of the applicant's nominated occupation had ceased, and subsequent legislative amendments repealed and replaced the criteria for nominations and the Subclass 457 visa itself.

The primary legal issue before the Tribunal was whether the applicant met the requirements for a Subclass 457 visa, specifically clause 457.223(4)(a), which mandates an approved nomination for the applicant. The Tribunal also considered the impact of the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018, which commenced on 18 March 2018, on the applicant's eligibility.

The Tribunal reasoned that while the legislative changes had made it impossible to obtain a Subclass 457 visa as intended by the applicant, the critical factor was that the applicant had ceased working for the nominator before these changes took effect. The Tribunal noted that an approved nomination is an essential requirement for this visa stream. As there was no dispute that no approved nomination existed in respect of the applicant at the time of the decision, and it was no longer possible to obtain such a nomination due to the legislative amendments, the Tribunal found that clause 457.223(4)(a) was not met. The Tribunal also stated it was not appropriate to consider the applicant's claims about receiving inadequate advice from immigration professionals, as its role was solely to determine if the visa criteria were met.

Consequently, the Tribunal affirmed the decision not to grant the applicants Temporary Business Entry (Class UC) visas, finding that the requirements for the standard business sponsorship stream had not been met.