Singh (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), by an applicant who had been nominated for the position of Chef by ROYAL INDIAN KITCHEN P/L. The Department refused to grant the visa, finding that the applicant did not meet the requirement for an approved nomination under clause 457.223(4)(a) of the Migration Regulations 1994, as the nominating business had no approved nomination in place for the applicant. The applicant's family members also failed to meet the primary criteria for the visa. The Administrative Appeals Tribunal (AAT) subsequently affirmed the delegate's decision.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a subclass 457 visa, specifically concerning the requirement for an approved nomination by a standard business sponsor. The Tribunal also considered its own jurisdiction to hear a merits review application from the nominator, which was found to be lacking due to the nominating business having been deregistered. The Tribunal was required to determine if the applicant could satisfy the essential criteria for the visa in the absence of an approved nomination, particularly in light of legislative changes that repealed and replaced regulations pertaining to nominations and the subclass 457 visa itself.

The Tribunal reasoned that clause 457.223(4)(a) of the Migration Regulations 1994 mandates an approved nomination by a standard business sponsor that has not ceased. As the applicant's sponsor did not have an approved nomination for them, and a new application for approval of a nomination could no longer be made due to legislative changes, the applicant could not satisfy this essential criterion. The Tribunal noted that the nominating business's deregistration further complicated any potential review by the nominator. Consequently, the Tribunal concluded that the requirements for the standard business sponsorship stream had not been met.

The Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.