Santos Da Cruz (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), by a primary applicant and secondary applicants. The dispute arose from the Department's decision to refuse the visa application. The review of this decision was heard by the Administrative Appeals Tribunal, with Member Alan McMurran presiding.

The primary legal issue before the Tribunal was whether the primary visa applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994, specifically concerning the necessity of being the subject of an approved nomination for the nominated occupation. A further issue related to whether the secondary applicants, as family members, could satisfy the criteria for the visa given the primary applicant's circumstances.

The Tribunal's reasoning focused on the requirement for an approved nomination under section 140GB of the Migration Act 1958. It was established that the nominator, La Dicha Pty Ltd, had its nomination application for the occupation of Café or Restaurant Manager refused by the Department on 6 August 2018. Although the nominator sought review of this decision, the Tribunal affirmed the refusal on 1 April 2021, and this decision was not subject to further review. Consequently, the Tribunal found that the visa applicant did not have an approved nomination, thus failing to meet the criterion in cl 457.223(4)(a). Furthermore, as the primary applicant was not the holder of a Subclass 457 visa, the secondary applicants could not satisfy the requirements of regulation 457.321.

The Tribunal concluded that the requirements for the standard business sponsorship stream had not been met. As no claims were made regarding other streams within clause 457.223, and no evidence was presented to suggest the visa applicant could satisfy those criteria, the Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas to the applicants.