Mucha (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, made by the first named applicant, with a secondary applicant also involved. The dispute arose from the Department's refusal to approve the nomination application made by the nominating employer, Hallmarc Developments Pty Ltd, in respect of the first named applicant. The case came before the Tribunal for review of the nomination decision.

The primary legal issue before the Tribunal was whether the first named applicant met the requirements of clause 457.223(4)(a) of Schedule 2 to the Regulations. This clause mandates that an applicant must have an approved nomination of an occupation relating to them by a standard business sponsor, which has not ceased. Specifically, the Tribunal had to determine if the nomination was approved, if it was made by an approved standard business sponsor at the time of approval, and if that approval had not ceased.

The Tribunal reasoned that the nominating employer's application for approval of the position of Program or Project Administrator had been refused by the Department. However, on review, the Tribunal set aside the Department's decision and substituted an approval of the nomination on 28 October 2021. The Tribunal found that the nominating employer was an approved standard business sponsor for the relevant period, and that the nomination approval had not ceased. Consequently, the Tribunal concluded that the first named applicant met the requirements of clause 457.223(4)(a).

Given these findings, the Tribunal determined that the appropriate course was to remit the visa applications for reconsideration by the Minister. This reconsideration was to include the assessment of the remaining criteria for a Subclass 457 visa, as well as any criteria relating to the secondary applicant. The Tribunal directed that for the purpose of the reconsideration, the first named applicant was to be considered as meeting the criteria in clause 457.223(4)(a).