Tran (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant sought review of a decision to refuse their visa application, which had been refused because the nomination of their occupation as a Baker, made by VD Nguyen & TT Hoang, was refused by the Department. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether there was an approved nomination of an occupation relating to the applicant by a standard business sponsor that had not ceased. The Tribunal noted that the nomination had been refused by the Department and that this refusal was affirmed by the Tribunal on review. Despite the sponsoring business subsequently applying for judicial review of the nomination refusal in the Federal Circuit Court of Australia, the Tribunal considered that the nomination had been "finally determined" as defined in section 5 of the Migration Act 1958.

The Tribunal reasoned that because the nomination had been refused on review and this decision was considered final for the purposes of the visa application, the requirement for an approved nomination under clause 457.223(4)(a) was not met. The Tribunal acknowledged the sponsoring employer's application for judicial review but concluded that this did not alter the fact that the nomination itself had been refused. Consequently, the Tribunal found that the requirements for the standard business sponsor stream had not been met, and as no claims were made regarding other streams, the visa could not be granted.

The Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.