Lee (Migration)

This matter concerned an application for Temporary Business Entry (Class UC) visas, specifically Subclass 457 visas. The dispute arose after the Department initially refused to approve the applicant's nomination for the position of Chef. The Administrative Appeals Tribunal (AAT) reviewed this decision and, on 10 May 2021, set aside the refusal, substituting a decision to approve the nomination. The AAT then considered whether the applicant met the requirements of clause 457.223(4)(a) of the Regulations.

The primary legal issue before the Tribunal was to determine whether the applicant met the criteria set out in clause 457.223(4)(a) of Schedule 2 to the Regulations, which pertains to the requirement for an approved nomination. This clause mandates that a nomination of an occupation in relation to the applicant must have been approved under section 140GB of the Act, made by a standard business sponsor at the time of approval, and that the approval must not have ceased.

The Tribunal reasoned that the nomination for the applicant as a Chef had indeed been approved by the Tribunal itself, and at the time of this approval, the nominator was a standard business sponsor and the nomination had not ceased. Consequently, the Tribunal was satisfied that clause 457.223(4)(a) was met. Given this finding, the Tribunal determined that the appropriate course was to remit the visa applications to the Minister for reconsideration of the remaining criteria for the Subclass 457 visas. The application of the second applicant, who applied as a member of the family unit, was to be determined by reference to the outcome of the first applicant's application upon remittal.