Next Generation Manufacturing Pty Ltd (Migration)

This matter concerned an application by Next Generation Manufacturing Pty Ltd for approval of a nomination for a Subclass 457 visa. The applicant sought to have the decision to refuse the nomination reviewed by the Tribunal. The primary issue before the Tribunal was whether the applicant had met the criteria for the approval of the nomination, specifically concerning the identification of the nominee.

The Tribunal was required to determine whether the applicant had satisfied the requirements of regulation 2.72(5) of the Migration Regulations 1994, which mandates that the nominator identify the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. This regulation is intended to ensure that the approved sponsor clearly identifies the specific individual who will be employed in the nominated role. The Tribunal considered whether the nominee identified at the time of lodging the nomination application was the correct person to be considered for the purposes of the decision.

In its reasoning, the Tribunal interpreted regulation 2.72(5) to mean that the nominee identified at the time the nomination application was lodged must be the person who will work in the nominated occupation. This interpretation was supported by the wording of regulation 2.73, which refers to "the nomination" as a singular application, and by Departmental policy which states that if a change of nominee is required, a new nomination must be lodged. The Tribunal found that the applicant had not satisfied this criterion, as there was no response from the applicant regarding an alternate nominee, and therefore no satisfactory identification of the individual who would work in the nominated occupation.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.