Ma (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, made by the first named applicant. The dispute centred on whether the applicant met the requirements of clause 457.223(4)(a) of the relevant regulations, which pertains to an approved and valid nomination by a standard business sponsor. The Tribunal was required to determine the applicability of a 'savings' provision to the applicant's nomination, given legislative changes to the Subclass 457 visa scheme.

The core legal issue before the Tribunal was whether clause 457.223(4)(a) was satisfied, specifically concerning the existence of an approved and un-ceased nomination. This required the Tribunal to consider the interaction between the original refusal of the employer nomination, the subsequent approval of that nomination by the Tribunal, and the legislative amendments that came into effect on 18 March 2018. The Tribunal had to ascertain whether a specific 'savings' provision, designed to protect applications lodged before the legislative changes, applied to the applicant's circumstances.

The Tribunal reasoned that the 'savings' provision, found in clause 6704(15) of Schedule 13 to the Regulations, was applicable. This provision preserved the validity of nominations made before 18 March 2018 if the visa applicant had applied for a Subclass 457 visa before that date and sought review of a refusal within 12 months of the nomination's approval. The Tribunal found that the applicant met these conditions, having applied for the visa and subsequently for review of its refusal within the prescribed timeframes. Consequently, the Tribunal determined that there was an approved and valid nomination in respect of the applicant.

Given this finding, the Tribunal concluded that the appropriate course of action was to remit the applications for the Temporary Business Entry (Class UC) visas for reconsideration by the Minister. The remittal was made with the direction that the first named applicant had met the criteria under clause 457.223(4)(a) of Schedule 2 to the Regulations, allowing for the assessment of the remaining visa criteria.