RATTU (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), made by the primary applicant, with a secondary applicant also involved. The core dispute revolved around the primary applicant's failure to provide requested evidence of a skills assessment for the nominated occupation of Cook. The Department of Home Affairs refused the visa applications, a decision subsequently affirmed by the Tribunal.

The legal issues before the Tribunal were whether the primary applicant met the requirements of clauses 457.223(4)(da) and 457.223(4)(e) of Schedule 2 to the Migration Regulations 1994. These clauses require an applicant to possess the necessary skills, qualifications, and employment background for the nominated occupation, and to demonstrate these skills in a manner specified by the Minister if so required. The Tribunal also considered the impact of changes to the Subclass 457 visa program, specifically the introduction of the Temporary Skill Shortage (TSS) visa (Subclass 482), and whether transitional arrangements preserved the validity of the nomination.

The Tribunal reasoned that the primary applicant had been given ample opportunity, a total of 98 days across two requests, to provide evidence of a skills assessment, but failed to respond. Consequently, the applicant did not demonstrate that they possessed the skills necessary to perform the nominated occupation as required by clause 457.223(4)(e). While acknowledging the changes to the Subclass 457 program and the introduction of the TSS visa, the Tribunal found that transitional provisions preserved the nomination's validity for the purpose of the review. The Tribunal affirmed the decision to refuse the primary applicant's visa, which necessitated affirming the refusal of the secondary applicant's visa as they did not meet the secondary criteria.