The Trustee for YONG & YU UNIT TRUST (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by The Trustee for YONG & YU UNIT TRUST concerning a decision to refuse a nomination. The core of the dispute revolved around whether the applicant met the criteria for approval of a nomination under the Migration Regulations 1994, specifically in relation to the visa status of the proposed employee.

The Tribunal was required to determine if the applicant satisfied the requirements of Regulation 2.72 of the Migration Regulations 1994 for the approval of a nomination. A key issue was whether the identified person for the nominated occupation, Zengdong XU, held or had a pending application for a Subclass 457 (Temporary Work (Skilled)) visa, as required by Regulation 2.72(5) given the nomination was lodged before the repeal of the Subclass 457 visa program.

The Tribunal reasoned that Regulation 2.72(5) mandates the identification of a visa holder, applicant, or proposed applicant for a visa who will work in the nominated occupation. In this instance, the nominated person, Zengdong XU, did not hold a Subclass 457 visa and had no pending application for one. Furthermore, the nomination was made on 28 February 2018, prior to the commencement of the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 on 18 March 2018, which repealed the Subclass 457 visa program. Consequently, a Subclass 482 (Temporary Skills Shortage) visa holder could not satisfy Regulation 2.72(5) in relation to a nomination lodged before the Subclass 457 program was closed.

The Tribunal concluded that it was not satisfied that the applicant met the applicable criteria for the nomination to be approved. Accordingly, the decision under review to refuse the nomination was affirmed.