Phung (Migration)

The Administrative Appeals Tribunal considered an application for a Temporary Business Entry (Class UC) visa, Subclass 457, by an applicant nominated as a Dental Technician by Perfect Smiles Orthodontics Pty Ltd. The primary dispute concerned whether the applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994, which mandates an approved nomination for the relevant visa subclass.

The central legal issue before the Tribunal was whether an approved nomination for a Subclass 482 visa could satisfy the nomination requirement for a Subclass 457 visa, particularly after the repeal of the Subclass 457 visa and its replacement by the Subclass 482 visa. The applicant sought to rely on a nomination approved for a Subclass 482 visa to meet the criteria for the now-repealed Subclass 457 visa.

The Tribunal's reasoning was guided by the Federal Court's decision in *James*, which held that a nomination under section 140GB of the Migration Act 1958 must be for a "particular visa of a prescribed kind." This principle dictates that an approved nomination must correspond to the specific visa subclass for which the applicant has applied. As the applicant's approved nomination was for a Subclass 482 visa, and the application under review was for a Subclass 457 visa, the Tribunal concluded that the nomination did not satisfy the requirements of clause 457.223(4)(a).

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 457 visa, finding that the requirements for the standard business sponsorship stream had not been met. The Tribunal also noted that the birth of the applicants' child during the review process did not alter the outcome, as the child could not be included in the current application for review.