Smietanski, Piotr (Migration)

This matter concerned an appeal by Mr Piotr Smietanski against the decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the refusal of his nomination for a Subclass 457 visa. The core of the dispute revolved around whether the applicant met the criteria for the approval of the nomination under the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant, as an approved sponsor, satisfied the requirements of regulation 2.72, specifically concerning the identification of the visa holder or proposed visa holder who would work in the nominated occupation. This involved considering whether the nominee identified at the time of lodging the nomination application was the same individual intended to work in the nominated occupation at the time of the decision, as interpreted by the Tribunal and reflected in departmental policy.

The Tribunal reasoned that regulation 2.72(5) mandates that the decision-maker must be satisfied that the approved sponsor has identified the specific individual who will work in the nominated occupation. The Tribunal interpreted the phrase "identified in the nomination" to mean the person named when the application for approval of the nomination was initially lodged. This interpretation was supported by the structure of regulation 2.73, which refers to "the nomination" as a singular application, and by departmental policy which requires a new nomination to be lodged if the nominated person changes. The Tribunal found no reason to depart from this interpretation, which it considered to align with the policy intention of ensuring a specific individual is linked to the nominated occupation.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination, finding that the applicant had not met the applicable criteria.