Smith (Migration)

This matter concerned an application for review of a decision not to grant a Temporary Business Entry (Class UC) visa, subclass 457. The applicant sought to have the decision of the Department of Home Affairs affirmed by the Administrative Appeals Tribunal. The central issue revolved around the applicant's eligibility for the visa, specifically concerning the requirement for an approved nomination for the position of fitter.

The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria set out in clause 457.223 of the Migration Regulations 1994. This clause mandates that an applicant must have an approved nomination for an occupation, made by a standard business sponsor, which has not ceased. The Tribunal specifically considered whether the applicant's nominator had an approved nomination that remained valid at the time of the decision.

The Tribunal found that the applicant's nominator, Eire Day Contractor Pty Ltd, had withdrawn its application for review of a nomination refusal on 12 October 2021. This withdrawal meant that there was no longer an approved nomination in place for the applicant. In accordance with procedural fairness, the Tribunal notified the applicant of this information and invited submissions, but no response was received within the prescribed period. Applying section 359C and 360(3) of the Migration Act 1958, the Tribunal concluded that the applicant was not entitled to a hearing and proceeded to make a decision based on the available information.

Consequently, as the applicant failed to satisfy the essential criterion of having an approved nomination, the Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visa.