THJ Group Pty Ltd (Migration)

This matter concerned an application by THJ Group Pty Ltd for approval of a nomination for a Subclass 457 (Temporary Work (Skilled)) visa. The Administrative Appeals Tribunal (AAT) was required to review the decision to refuse the nomination. The applicant had lodged the nomination application before 18 March 2018, at a time when the Subclass 457 visa program was still in operation. However, the Subclass 482 (Temporary Skills Shortage) visa, which commenced on 18 March 2018, was not compatible with a nomination application lodged prior to that date.

The primary legal issue before the Tribunal was whether the nomination criteria, specifically as they related to the proposed visa type, could be met given the legislative changes that occurred after the nomination was lodged. The Tribunal had to determine if the proposed nominee was eligible for the Subclass 482 visa, or if the nomination, made in relation to a now-repealed visa subclass, could still be approved. The Tribunal also considered whether the applicant had been afforded a fair opportunity to provide necessary information and submissions, particularly in light of a failure to respond to a request for information by a specified deadline.

The Tribunal reasoned that the Subclass 482 visa regime, which replaced the Subclass 457 visa from 18 March 2018, was not compatible with a nomination application made before that date. Consequently, a nominee could not satisfy the requirements for a Subclass 482 visa based on a nomination lodged prior to the commencement of the new regulations. The Tribunal found that the proposed nominee did not hold a Subclass 457 visa and was unable to be granted the currently required Subclass 482 visa. Furthermore, the Tribunal noted that the nominee had not made any visa application. The Tribunal also considered that the applicant had failed to respond to a request for information by the stipulated deadline, and therefore, it was open to the Tribunal to make a decision without further input from the applicant.

Accordingly, the Tribunal affirmed the decision to refuse the nomination approval. The Tribunal was satisfied that the nomination application was lodged before 18 March 2018, in relation to a proposed Subclass 457 visa, but that there was no longer an outstanding proposed applicant for a Subclass 457 visa. As such, the Tribunal concluded that there were no prescribed criteria against which the nomination could be assessed under the current regulatory framework.