Sapkota (Migration)

This matter concerned applications for Temporary Business Entry (Class UC) visas, specifically Subclass 457 (Temporary Work (Skilled)), made by a primary applicant and a second applicant. The dispute arose from the Department's refusal of the primary applicant's visa application, which was linked to the refusal of an approved nomination for the occupation of Cook. The nominator, A.C.E (NSW) Enzoz Cucina Pty Ltd, sought review of the nomination refusal. The case was heard by the Tribunal, presided over by Senior Member R. Skaros.

The central legal issue before the Tribunal was whether the primary visa applicant met the requirements of subclause 457.223(4)(a) of the Migration Regulations 1994. This subclause mandates that there must be an approved nomination of an occupation relating to the applicant by a standard business sponsor, and that this approval must not have ceased. The Tribunal also considered the eligibility of the second applicant, whose application was refused on the basis that she was not a member of the family unit of a person holding a relevant visa.

The Tribunal reasoned that the initial refusal of the nomination by the Department was flawed. It noted that the Tribunal itself had previously set aside that refusal and substituted a decision approving the nomination on 13 March 2020. The Tribunal was satisfied, based on the evidence, that the nomination for the primary applicant in the occupation of Cook was approved on that date and that the sponsor, A.C.E (NSW) Enzoz Cucina Pty Ltd, was approved as a standard business sponsor from 22 May 2018 to 22 May 2023. Consequently, the Tribunal concluded that the nomination remained current and that the primary applicant met the requirements of subclause 457.223(4)(a).

Given these findings, the Tribunal determined that the appropriate course of action was to remit the applications for reconsideration by the Minister. The Tribunal directed that the primary applicant meets the criteria under subclause 457.223(4)(a). For the second applicant, the Tribunal noted the Department's refusal reason and stated that on remittal, her eligibility would be reconsidered in light of the outcome for the first named applicant.