Pawandeep Kaur (Migration)

This matter concerned an appeal by Pawandeep Kaur and other applicants (the applicants) against a decision to refuse them Temporary Business Entry (Class UC) visas, subclass 457 (Temporary Work (Skilled)). The primary issue before the Tribunal was whether the applicants met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994, which mandates an approved nomination of an occupation by a standard business sponsor that has not ceased. The applicants' nominator, Australian Institute of Technical Training Pty Ltd, had its application for approval of the nominated position refused, and this refusal was subsequently affirmed by the Tribunal.

The Tribunal was required to determine if the applicants could satisfy the nomination requirement for the subclass 457 visa, particularly in light of legislative changes introduced from 18 March 2018 that removed this visa subclass. The applicants sought an extension of time to find a new employer, but the Tribunal considered this futile given the legislative changes, which meant any new nomination would not fulfil the requirements for this specific visa application. The applicants confirmed their understanding of these changes and indicated they were seeking an employer for a Subclass 494 visa.

The Tribunal reasoned that as the nominator's application for approval of the nominated position had been refused and affirmed, there was no approved nomination in place. Furthermore, the legislative changes meant that any nomination for this visa subclass needed to have been lodged prior to 18 March 2018. As there was no evidence of an approved nomination lodged before this date, the Tribunal concluded that the nomination requirement in clause 457.223(4)(a) was not met. Consequently, the Tribunal found that the primary applicant did not meet the criteria for the grant of the visa, and by extension, the secondary applicants did not meet the criteria under clause 457.321.

The Tribunal affirmed the decision not to grant the applicants Temporary Business Entry (Class UC) visas.