Perera (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Temporary Business Entry (Class UC) visa, Subclass 457. The core dispute revolved around whether the applicant met the requirements for an approved nomination for the occupation of Contract Administrator, particularly in light of the closure of the Subclass 457 visa program and the applicant's business employing an Australian citizen.

The Tribunal was required to determine if the applicant satisfied clause 457.223(4)(a) of Schedule 2 to the Regulations, which mandates an approved nomination that has not ceased. The applicant's nominator had previously applied for review of the Department's decision to refuse their nomination application, and the Tribunal had affirmed that refusal. Furthermore, the Subclass 457 visa scheme had been significantly altered, making new nominations for this visa impossible since March 2018.

The Tribunal reasoned that the absence of an approved nomination was a critical failure to meet the visa requirements. Despite this, the Tribunal acknowledged the applicant's submissions regarding his long-term residence in Australia, his children's integration into the Australian education system, and his establishment of a cleaning business that employed an Australian citizen. Considering these factors, particularly the potential impact on the children and the applicant's community integration, the Tribunal decided to refer the matter for Ministerial Intervention under section 351 of the Migration Act 1958. This referral was based on potential obligations under the Convention on the Rights of the Child and the significant level of the applicant's integration into Australian society.

Ultimately, the Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas to the applicants. However, the case was referred to the Minister for consideration of exercising intervention powers, acknowledging the unique circumstances presented.