Truong (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457. The applicant, Mr. Truong, sought review of a decision not to grant him this visa. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically focusing on the requirement for an approved nomination by a standard business sponsor.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 457.223(4)(a) of the Migration Regulations, which mandates an approved nomination for the occupation by a standard business sponsor that has not ceased. This requirement was complicated by the fact that the applicant's employer, JN & Co Pty Ltd, had its nominations for Mr. Truong refused, and a subsequent application for judicial review of one of those refusals was still pending before the Federal Circuit Court. Furthermore, legislative amendments had repealed the subclass 457 visa and introduced new criteria for its replacement, the subclass 482 visa, impacting the validity of any future nominations for a subclass 457 visa.

The Tribunal reasoned that as of October 2019, there was no currently approved nomination for Mr. Truong. It noted that the judicial review application, even if successful, would likely result in the matter being remitted for reconsideration, not an automatic approval. Crucially, the Tribunal observed that amendments effective from 18 March 2018 meant that any new nomination lodged after that date could only support a subclass 482 visa application or applications by existing subclass 482 or 457 visa holders, neither of which applied to Mr. Truong's situation. Therefore, the Tribunal concluded that the only pathway to satisfy clause 457.223(4)(a) would be a successful judicial review leading to a remitted reconsideration and a subsequent approval of the nomination.

Ultimately, the Tribunal found that the requirements for the standard business sponsor stream had not been met. As no claims were made in respect of other visa streams and there was no evidence of the applicant being able to satisfy those criteria, the Tribunal affirmed the decision not to grant the visa.