POUDEL (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Poudel, an applicant for a Temporary Business Entry (Class UC) visa, specifically a Subclass 457 (Temporary Work (Skilled)) visa. The dispute centred on whether the applicant met the requirements for this visa, with the delegate having initially refused the visa on the grounds that the applicant lacked the necessary skills, qualifications, and employment background for the nominated occupation.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant possessed the requisite skills, qualifications, and employment background as stipulated by clause 457.223(4)(da) of the Migration Regulations. Secondly, and crucially, the Tribunal had to ascertain whether there existed an approved nomination for the applicant, given that the previously approved nomination had expired. This second issue was raised by the Tribunal as a potential reason for affirming the delegate's decision, particularly in light of legislative changes that repealed and replaced the criteria for Subclass 457 visa nominations.

In its reasoning, the Tribunal noted that the applicant's agent had been unable to contact the applicant to obtain comments on the proposed reasons for affirming the decision, including the issue of the expired nomination. The Tribunal found that the applicant had not demonstrated that they met the requirements of clause 457.223(4), specifically concerning the existence of an approved nomination. The Tribunal concluded that the applicant was not the subject of an approved nomination because the nomination previously approved for Evamarie P/L had expired on 22 September 2017, and the subsequent legislative amendments meant a new application for approval could not be made.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa, finding that the requirements for the Subclass 457 visa had not been met.