LEE (Migration)

The Administrative Appeals Tribunal considered an application by Mr. Lee for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The dispute centred on whether the applicant met the requirements for this visa, specifically the need for an approved nomination. The Tribunal, presided over by Susan Trotter, was tasked with determining if the applicant satisfied clause 457.223(4) of the Migration Regulations.

The primary legal issue before the Tribunal was whether the applicant had an approved nomination for the Subclass 457 visa at the time of application, as required by cl.457.223(4)(a). The Tribunal noted that the delegate's decision, provided to the Tribunal, indicated no such approved nomination existed. Furthermore, the Tribunal had to consider the impact of legislative changes on 18 March 2018, which replaced the Subclass 457 visa with the Subclass 482 visa, and how this affected the applicant's ability to link a subsequent nomination to his original visa application.

The Tribunal reasoned that cl.457.223(4)(a) mandated an approved nomination for the specific visa applied for, which was the Subclass 457. While the applicant had an approved nomination for a Subclass 482 visa, the Tribunal found that this could not satisfy the criterion for the Subclass 457 visa, particularly as nominations made after 18 March 2018 were not in relation to Subclass 457 visa applicants. The Tribunal's power was limited to assessing the criteria for the Subclass 457 visa, and as this criterion was not met and could no longer be met due to legislative changes, the Tribunal could not remit the matter for reconsideration on that basis.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 457 visa. The Tribunal clarified that it had no power to remit the matter to the Department to allow the applicant to lodge a Subclass 482 visa application, nor did it propose to recommend the matter for Ministerial Intervention, though the applicant remained at liberty to seek such intervention.