Pinthong (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision to refuse a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The applicant's employer, Sedap Kitchen Pty Ltd, had previously made a nomination for the applicant which was refused by the Department. While the employer sought review of this refusal with the Tribunal, that review application was affirmed. The applicant failed to respond to the Tribunal's invitation to provide further information.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994, which mandates an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The Tribunal was also required to consider the impact of legislative amendments introduced on 18 March 2018, which repealed the subclass 457 visa and replaced it with the Temporary Skill Shortage (TSS) visa (subclass 482), along with new criteria for nominations.

The Tribunal reasoned that even if a new nomination were secured, it would not satisfy clause 457.223(4)(a). This was because legislative amendments effective from 18 March 2018 meant that nominations lodged after that date could only support applications for the subclass 482 visa or for existing subclass 482 or 457 visa holders. As these conditions did not apply to the applicant, a nomination lodged after the amendment could not support an application for a subclass 457 visa that had not been finally determined. The Tribunal noted that it was not required to indefinitely defer its decision-making process, referencing relevant case law on the reasonableness of adjournment requests.

Consequently, the Tribunal affirmed the decision not to grant the visa. It found that the requirements for the standard business sponsor stream had not been met, and no claims had been made, nor was there evidence to suggest the applicant could satisfy the criteria for other streams of the subclass 457 visa.