Singh (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, made by an applicant who had a nomination from Hamdan Bros Pty Ltd trading as Country Growers. The nomination was initially approved, but the visa application was refused on the basis that the applicant did not meet the requirements relating to his skills, qualifications, and employment background. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994, specifically whether he was the subject of an approved nomination that had not ceased. This question arose in the context of legislative changes introduced by the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018, which commenced on 18 March 2018. The applicant contended that certain provisions within these amendments, specifically item 6704(15) of Schedule 13, preserved the validity of his nomination.

The Tribunal reasoned that the nomination, approved on 18 October 2016, would ordinarily cease 12 months after approval under regulation 2.75(2)(b). It found that the applicant's representative's argument that item 6704(15) applied was not persuasive, as the Tribunal was not satisfied that this provision applied retrospectively to nominations that had already ceased before the commencement of the Amending Regulations on 18 March 2018. Consequently, the Tribunal concluded that the nomination had ceased on 18 October 2017 and affirmed the decision not to grant the visa. However, the Tribunal indicated it would refer the matter to the Minister, having considered the ministerial guidelines relating to discretionary power.