Poudel (Migration)

This matter concerned an appeal by the applicants against the decision of the Minister's delegate to refuse to grant them Temporary Business Entry (Class UC) visas. The primary applicant, a lecturer/teacher with Nepalese citizenship, held several academic qualifications and had a history of employment in Nepal and Australia. The applicants had entered Australia on a student visa and sought a Subclass 457 visa, with their employer, Lianrick Pty Ltd, lodging multiple sponsorship and nomination applications.

The central legal issue before the Tribunal was whether the primary visa applicant met the requirements of clause 457.223(4)(a)(iii) of the Migration Regulations 1994, specifically that they were the subject of an approved nomination that had not ceased. The Tribunal was required to determine the validity and duration of the approved nomination in light of the relevant regulations, particularly Regulation 2.75, which outlines the circumstances under which a nomination approval ceases.

The Tribunal reasoned that while a nomination was approved on 4 September 2018, Regulation 2.75(2)(b) stipulated that such an approval ceased 12 months after the date of approval. Therefore, the sponsor's nomination ceased on 5 September 2019. The Tribunal also noted that the Migration Amendment (Temporary Skill Shortage visa and Complimentary Reforms) Regulations 2018, which commenced on 18 March 2018, repealed and replaced the criteria for nominations relating to proposed Subclass 457 visa applicants, and the Subclass 457 visa itself was repealed. Consequently, the primary applicant was not the subject of an approved nomination that had not ceased at the time of the decision.

The Tribunal affirmed the decision not to grant the applicants Temporary Business Entry (Class UC) visas. However, the Tribunal considered that the case warranted referral to the Minister for his consideration.