McDonald (Migration)

This matter concerned an appeal by a visa applicant against a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal to grant a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant sought review of the Tribunal's decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of subclause 457.223(4)(a) of the Migration Regulations 1994. This subclause mandates that a nomination of an occupation in relation to the applicant must have been approved by a standard business sponsor and that such approval must not have ceased. The Tribunal was required to determine if the applicant was the subject of a current approved nomination, particularly in light of legislative changes that repealed and replaced the criteria for Subclass 457 visa nominations and closed the visa subclass to new applications.

The Tribunal reasoned that the applicant's most recent nomination for the occupation of Construction Project Manager, made by Chomp Excavation & Demolition Pty Ltd, had been refused by the Department and that a subsequent review application had been affirmed by the Tribunal. The Tribunal notified the applicant via a section 359A invitation that an approved nomination was a prerequisite for the visa grant and that due to legislative changes, a new nomination could not be made. As the applicant did not respond to this invitation and there was no evidence of a current approved nomination, the Tribunal concluded that the requirements of subclause 457.223(4)(a) were not met. The Tribunal also noted that no claims had been made regarding other streams within clause 457.223.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.