Nguyen (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, brought before the Tribunal by Jade Murphy. The dispute centred on whether the applicant met the requirements of subclause 457.223(4)(a) of the Migration Regulations 1994, which pertains to having an approved nomination by a standard business sponsor that has not ceased. The Tribunal had previously substituted a decision to approve the employer nomination, which had initially been refused by the Department of Home Affairs.

The primary legal issue before the Tribunal was to determine if the applicant met the criteria for an approved nomination under cl 457.223(4)(a), particularly in light of legislative changes to the Subclass 457 visa scheme that came into effect on 18 March 2018. The Tribunal also had to consider the application of a specific 'savings' provision, r 2.75(2)(b), which preserved the validity of nominations made before the legislative changes under certain circumstances.

The Tribunal reasoned that the savings provision, cl 6704(15) of Schedule 13 to the Regulations, applied to this case. This provision was designed to prevent nominations from ceasing to be in effect when an applicant successfully reviewed a visa refusal, especially when it would no longer be possible to make a new nomination under the revised legislative framework. Given that the applicant had applied for the Subclass 457 visa and sought review of its refusal before the legislative changes, and within the stipulated timeframe, the Tribunal found that the savings provision was engaged. Consequently, the Tribunal concluded that there was an approved and valid nomination in respect of the applicant, satisfying the requirements of cl 457.223(4)(a).

The Tribunal remitted the application for the Temporary Business Entry (Class UC) visa for reconsideration by the Minister, with a direction that the visa applicant meets the criteria specified in cl 457.223(4)(a) of Schedule 2 to the Regulations.