LEE (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The dispute arose because the nominated occupation for the applicant was removed from the list of eligible occupations, and consequently, there was no approved nomination in place at the time of the decision. The Tribunal was tasked with determining whether the applicant met the requirements for the visa, specifically under the standard business sponsor stream.

The central legal issue before the Tribunal was whether the applicant satisfied the criteria outlined in clause 457.223 of the Migration Regulations 1994. This clause sets out the requirements for a standard business sponsorship, including the necessity of an approved nomination for the applicant's occupation, the occupation being listed as eligible, and the applicant meeting various other criteria related to employment and skills. The Tribunal had to assess if the absence of an approved nomination, due to the occupation's removal from the eligible list, prevented the applicant from meeting the visa requirements.

The Tribunal reasoned that a fundamental requirement for the standard business sponsor stream, as stipulated in clause 457.223(4)(a)(i), is that a nomination of an occupation in relation to the applicant must have been approved under section 140GB of the Act. The Tribunal found that this requirement had not been met because the nominated occupation was no longer on the list of eligible occupations, and therefore, no valid nomination could be approved. As no claims were made in respect of other visa streams, and there was no evidence that the applicant could satisfy the criteria for those streams, the Tribunal affirmed the decision not to grant the visa.