TANGSAMUT (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), made by an applicant for the occupation of Cook. The applicant's nomination was approved by the sponsor, Leh Kuong Wong atf The Wong Family Trust. The Department of Home Affairs refused the visa application, and the applicant sought review of this decision. The case was heard by Jennifer Cripps Watts.

The primary legal issues before the Tribunal were whether the applicant met the requirements of clauses 457.223(4)(da) and 457.223(4)(e) of Schedule 2 to the Migration Regulations 1994. These clauses relate to the applicant possessing the necessary skills, qualifications, and employment background for the nominated occupation, and the ability to demonstrate these skills as specified by the Minister. The Tribunal also considered the impact of changes to the Subclass 457 visa program, specifically the introduction of the Temporary Skill Shortage (TSS) visa (Subclass 482) and the cessation of the ability to request a skills assessment from Trades Recognition Australia (TRA) for Subclass 457 applications after 18 March 2018.

The Tribunal reasoned that the nomination had not ceased due to transitional arrangements that preserved nominations linked to Subclass 457 visa applications under review. It found that the applicant had commenced the TRA skills assessment process and paid for it, and that the subsequent inability to complete the assessment was due to changes in the visa program. The Tribunal concluded that the applicant met the criteria under clauses 457.223(4)(da) and 457.223(4)(e).

Consequently, the Tribunal remitted the applications for reconsideration by the Minister, with a direction that the first applicant meets the specified criteria for a Subclass 457 visa.