Srun (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Temporary Work (Long Stay Activity) (Class GB) visa, subclass 401, specifically within the Religious Worker stream. The applicant sought to have the decision reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant was the subject of a current nomination that had not ceased, as required by clause 401.212 of the Migration Regulations. This clause mandates that an applicant must be identified in an approved nomination and that the approval of that nomination must not have ceased. A further preliminary issue was the impact of legislative changes that occurred on 19 November 2016, which closed the subclass 401 visa class to new applications.

The Tribunal noted that the applicant's last approved nomination was in September 2015. Under the relevant regulations, such a nomination would cease by operation of law in September 2016. Crucially, the subclass 401 visa class itself closed to new applications on 19 November 2016. Consequently, the applicant could not satisfy the essential requirement of having a current, un-ceased nomination. The Tribunal explained that it had no discretion to make a decision outside the operation of the law, despite submissions from a representative of the religious organisation regarding the applicant's contributions and the needs of the temple.

The Tribunal affirmed the decision not to grant the applicant the visa, as the applicant had failed to meet the essential criteria for the Religious Worker stream of the subclass 401 visa.