KUMAR (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, made by Mr. Kumar. The decision under review was the refusal of this visa application by the Department of Immigration. The Tribunal was asked to determine whether Mr. Kumar met the requirements of clause 457.223(4) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether Mr. Kumar was the subject of an approved nomination by a standard business sponsor, as required by clause 457.223(4)(a). The evidence showed that the prospective employer, Executive Life P/L, lodged three nomination applications on behalf of Mr. Kumar. The first two applications were refused by the Department, and Mr. Kumar was given opportunities to comment after each refusal. While a third nomination application was lodged, the delegate noted that as of February 2018, it had not been finalised, and crucially, Mr. Kumar was not the subject of an approved nomination at that time. The Tribunal also considered whether Mr. Kumar met alternate criteria under clause 457.321, which he did not, as he was not a secondary applicant or a family unit member of a primary visa holder.

The Tribunal reasoned that the core requirement of clause 457.223(4)(a) was an approved nomination, which Mr. Kumar did not have. Despite the applicant's history of study and employment in Australia, including a previous subclass 457 visa, and his wife's visa status, these factors did not overcome the fundamental failure to meet the nomination requirement. The Tribunal found that the requirements for the standard business sponsorship stream had not been met, and no claims were made or evidence provided to suggest Mr. Kumar could satisfy other streams under clause 457.223.

Consequently, the Tribunal affirmed the decision not to grant Mr. Kumar the Temporary Business Entry (Class UC) visa.