Khadgi (Migration)

This matter concerned an application for review of a decision to refuse a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The applicant's employer, All in Endeavours Pty Ltd, had previously made a nomination of the applicant which was refused by the Department. While the employer sought review of this refusal with the Tribunal, the Tribunal found it lacked jurisdiction to review the employer's decision. The applicant subsequently secured new employment in the same work sector, but legislative amendments had altered the requirements for new nomination applications.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations, which mandates an approved nomination by a standard business sponsor that has not ceased. The Tribunal was required to determine if the applicant's circumstances, including the prior refused nomination and the subsequent legislative changes, satisfied this requirement.

The Tribunal reasoned that clause 457.223(4)(a) does not grant any discretion to consider compassionate or compelling circumstances, nor the reasons for the lack of an approved nomination. Crucially, the Tribunal found that even if the applicant could secure a new nomination from their current employer, it would not satisfy the requirements of clause 457.223(4)(a). This was due to legislative amendments effective from 18 March 2018, which repealed the subclass 457 visa and replaced it with the subclass 482 visa, introducing new criteria for nominations. A nomination lodged after this date could only support an application for a subclass 482 visa or for existing subclass 482 or 457 visa holders, circumstances not applicable to the applicant.

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