MOHAMMAD (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Mr Mohammad and his family for Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) visas. The primary applicant, Mr Mohammad, was nominated for the position of Café or Restaurant Manager by his sponsoring employer, Ohris Holdings Pty Ltd. The delegate had refused to approve the visa application because, at the time of the delegate's decision, there was no approved nomination for Mr Mohammad's nominated position.

The central legal issue before the Tribunal was whether the primary visa applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994. This clause mandates that there must be an approved nomination of an occupation relating to the applicant by a standard business sponsor, and that this approval must not have ceased. The Tribunal also considered the merits of the nomination application itself, which was the subject of a separate decision.

The Tribunal reasoned that a prerequisite for granting a Subclass 457 visa is an approved nomination. It noted that the Department had refused to approve Ohris Holdings Pty Ltd's nomination for Mr Mohammad, and that the Tribunal itself had subsequently affirmed this refusal in a separate written decision dated 27 October 2021. The Tribunal communicated this information to the applicants, explaining that the lack of an approved nomination meant Mr Mohammad likely did not satisfy a key requirement for the visa.

Ultimately, the Tribunal affirmed the delegate's decision to refuse the primary applicant's visa application. Pursuant to clause 457.321, the Tribunal also affirmed the decisions to refuse the secondary applicants' Subclass 457 visas, as they were not members of the primary applicant's family unit and did not meet the primary criteria in their own right.