Ratthongkhong (Migration)

This decision concerns an application for a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), made by the first named applicant, with the second named applicant seeking the visa as a member of his family unit. The matter came before the Tribunal for review after the Department refused to grant the visa.

The primary legal issue before the Tribunal was whether the first applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994, which mandates an approved nomination of an occupation by a standard business sponsor that has not ceased. A further issue arose regarding the second applicant's eligibility, specifically whether she met the secondary visa criteria as a member of the family unit of the primary applicant, or the primary visa criteria in her own right.

The Tribunal found that the nomination for the first applicant had been refused by the Department and that the employer had withdrawn their review application, meaning there was no approved nomination. Crucially, the Tribunal noted that legislative amendments introduced on 18 March 2018 repealed the subclass 457 visa and replaced it with the Temporary Skill Shortage (TSS) visa (subclass 482). These amendments introduced new criteria for nominations, meaning any future nomination lodged after that date could only support a subclass 482 visa application or applications by existing subclass 482 or 457 visa holders. As these conditions did not apply to the first applicant, the Tribunal concluded that a new nomination could not satisfy clause 457.223(4)(a) for a subclass 457 visa application that had not been finally determined. The Tribunal also considered that it was not required to indefinitely defer its decision-making process, referencing relevant case law on the reasonableness of adjournment requests.

The Tribunal affirmed the decision not to grant the visa to the first applicant due to the lack of an approved nomination that met the current regulatory requirements. Furthermore, the Tribunal affirmed the decision not to grant the visa to the second applicant, finding she did not meet the secondary criteria as a family member and had not demonstrated she met the primary criteria independently. Consequently, the Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas to the applicants.