SHAHNAZ (Migration)

The Administrative Appeals Tribunal considered the case of Shahnaz, the primary visa applicant, and secondary applicants, concerning their applications for Temporary Business Entry (Class UC) visas, Subclass 457 (Temporary Work (Skilled)). The central dispute revolved around whether the primary applicant met the requirements of clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994, which mandates an approved nomination by a standard business sponsor that has not ceased.

The Tribunal was required to determine if there was an approved nomination for the position of Transport Company Manager that had not ceased, as this was a prerequisite for the visa grant. The Tribunal also needed to consider the implications of the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018, which repealed and replaced the criteria for Subclass 457 visa nominations and closed the visa subclass to new applications. Furthermore, the Tribunal had to assess whether the secondary applicants met the requirements for their visas, specifically clause 457.321, which requires them to be members of the family unit of a Subclass 457 visa holder.

The Tribunal reasoned that a previous application for approval of the nomination by Kys Sodhi Logistics Pty Ltd had been refused, and the Tribunal lacked jurisdiction to review that refusal. Consequently, there was no evidence before the Tribunal of an approved nomination that had not ceased. The Tribunal noted that the Subclass 457 visa was repealed and closed to new applications from 18 March 2018, making it impossible to lodge a new nomination for such a visa. Despite the applicant's personal circumstances and desire to return to Australia, the Tribunal found that the absence of an approved nomination meant a necessary visa requirement was not met, and there was no discretion to overlook this. For the secondary applicants, the Tribunal found they did not meet the criteria as they were not members of the family unit of a Subclass 457 visa holder and had not met the primary visa criteria in their own right.

The Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas to the applicants.