OTTAVIANO (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), by an applicant whose employer, Roan Investments Pty Ltd, had a nomination application refused by the Department. The employer sought review of this refusal with the Tribunal, but the Tribunal affirmed the refusal decision. The applicant failed to respond to the Tribunal's invitation to comment, despite being granted additional time. The Tribunal, constituted by Alison Mercer, was required to determine whether the applicant met the requirements for the visa, specifically concerning the approved nomination.

The primary legal issue before the Tribunal was whether the applicant could satisfy clause 457.223(4)(a) of the Migration Regulations 1994, which requires an approved nomination by a standard business sponsor that has not ceased. The Tribunal considered the impact of legislative amendments introduced on 18 March 2018, which repealed the subclass 457 visa and replaced it with the subclass 482 visa, introducing new criteria for nominations. The Tribunal had to determine if any future nomination, even if approved, could satisfy the requirements for a subclass 457 visa application that had not been finally determined.

The Tribunal reasoned that due to the legislative amendments of 18 March 2018, any nomination lodged after that date could only support an application for a subclass 482 visa or for existing subclass 482 or 457 visa holders, as per regulation 2.72(1)(b). As these circumstances did not apply to the applicant, the Tribunal concluded that a nomination lodged after the legislative changes could not support an application for a subclass 457 visa that had not been finally determined. The Tribunal also had regard to case law, including *Minister for Immigration and Citizenship v Li* [2013] HCA 18, *Huo v Minister for Immigration and Multicultural Affairs* [2002] FCA 617, *Manna v Minister for Immigration and Citizenship* [2012] FMCA 28, and *Chen v Minister for Immigration and Border Protection* [2016] FCCA 2351, which supported the view that the Tribunal was not required to indefinitely defer its decision-making process.

Consequently, the Tribunal found that the requirements for the standard business sponsor stream had not been met. As no claims were made regarding other streams and there was no evidence the applicant could satisfy those criteria, the Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.