Kumar (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)) visa, standard business sponsor stream, made by Mr Kumar. The applicant's representative requested that the case be referred to the Minister for consideration under section 351 of the Migration Act 1958 (Cth) due to unique and exceptional circumstances.

The primary legal issue before the Tribunal was whether Mr Kumar met the requirements of clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth), which mandates an approved nomination of an occupation by a standard business sponsor that has not ceased. The Tribunal also considered whether the circumstances warranted a referral to the Minister for the exercise of discretionary intervention powers.

The Tribunal found that Mr Kumar did not meet the primary criteria for the grant of a Subclass 457 visa because there was no evidence of an approved nomination that had not ceased. The previous nomination application had been withdrawn, and new applications for this visa subclass were no longer permitted due to regulatory changes. Consequently, Mr Kumar's wife, who sought to be a secondary applicant, also did not meet the criteria. Despite affirming the decision not to grant the visa, the Tribunal considered the case to involve unique or exceptional circumstances, including regulatory changes in response to COVID-19 travel restrictions and the applicant's residence, study, and work history.

The Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas. However, it considered it appropriate to refer the case to the Minister for consideration of her discretionary intervention powers under section 351 of the Act, noting that further documentation supporting the applicant's integration into the Australian community could be provided to the Minister.