Sunlong Fresh Foods Pty Ltd (Migration)

This matter concerned an appeal by Sunlong Fresh Foods Pty Ltd (the applicant) against the decision to refuse its nomination for a Subclass 457 visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the approval of the nomination under section 140GB(2) of the Migration Act 1958 (Cth) and regulation 2.72 of the Migration Regulations 1994 (Cth).

The primary legal issue before the Tribunal was whether the applicant had satisfied regulation 2.72(5), which mandates the identification of the visa holder, or proposed applicant, who will work in the nominated occupation. The Tribunal considered whether this identification must refer to the person named at the time the nomination application was lodged, or if a change in the nominated individual could be accommodated. The Tribunal also examined the interaction between regulation 2.72(5) and other provisions, such as regulation 2.73, which govern the nomination process.

The Tribunal reasoned that regulation 2.72(5) requires the decision-maker to be satisfied that the person identified in the nomination application at its lodgement will indeed work in the nominated occupation. This interpretation aligns with the policy intention that a standard business sponsor must identify a specific individual. The Tribunal found support for this view in the wording of regulation 2.73, which refers to "the nomination" as a singular application, and in Departmental policy, which states that a change in the nominated person necessitates withdrawing the original application and lodging a new one.

Ultimately, the Tribunal affirmed the decision to refuse the nomination, concluding that the applicant had not satisfied the applicable criteria under regulation 2.72.