Picken (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary work (Skilled)), by Mr Picken. The dispute arose from the Tribunal affirming a delegate's decision to refuse the visa. The Tribunal considered whether the case warranted a referral to the Minister for possible intervention under section 351 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether Mr Picken met the requirements of clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth), which mandates an approved nomination of an occupation by a standard business sponsor that has not ceased. The Tribunal also considered the appropriateness of referring the case to the Minister under section 351, particularly in light of the closure of the 457 visa program, Mr Picken's change of employers, and COVID-19 travel restrictions.

The Tribunal reasoned that Mr Picken failed to meet the requirements of clause 457.223(4)(a) because the delegate's decision to refuse the company's nomination had been affirmed, and no new application for nomination approval could be made following the introduction of amending regulations. Furthermore, there was no evidence of an approved or pending nomination supporting Mr Picken's application. While acknowledging the unique and exceptional circumstances presented by Mr Picken's situation, including the impact of section 48 of the Act and COVID-19 travel restrictions on his ability to lodge a subsequent visa application offshore, the Tribunal ultimately found insufficient evidence regarding the proposed new employment and the probity of the offer to warrant a referral to the Minister.

Consequently, the Tribunal affirmed the decision not to grant Mr Picken a Temporary Business Entry (Class UC) visa. However, the Tribunal noted that it remained open for Mr Picken and his prospective employer to apply directly to the Minister for intervention, providing further supporting documentation.