Vatalesau (Migration)

The Administrative Appeals Tribunal reviewed decisions to refuse Temporary Work (Long Stay Activity) (Class GB) visas, subclass 401, in the religious worker stream, to Mr. Vatalesau and his wife and child. The primary dispute concerned whether the applicant, Mr. Vatalesau, satisfied the criteria for the visa, specifically the requirement to be identified in an approved nomination of an occupation or activity.

The Tribunal was required to determine if the applicant met the criteria under clause 401.212 of the Migration Regulations 1994, which necessitates identification in an approved nomination that has not ceased. This also required considering whether the sponsor, Sydney All Nations Baptist Church Incorporated, had satisfied the prescribed criteria for approval as a long stay activity sponsor under the religious worker stream. A further issue was whether the repeal of subclass 401 visas and the subsequent approval of the sponsor for a successor subclass (subclass 408) could satisfy the subclass 401 criteria.

The Tribunal reasoned that the sponsor's initial application for approval as a long stay activity sponsor under subclass 401 was refused because it did not meet the prescribed criteria. Although the sponsor was later approved as a Temporary Activities Sponsor for the successor subclass 408, this did not retrospectively satisfy the criteria for a subclass 401 visa, as the relevant regulations for subclass 401 nominations had been repealed. Consequently, the Tribunal found that there was no approved nomination for a subclass 401 visa, and the applicant could not meet clause 401.212. The Tribunal also affirmed the refusal of visas for the applicant's wife and child, as they did not meet the secondary criteria.

Despite affirming the decisions to refuse the visas, the Tribunal considered that the abolition of the subclass 401 visa category was outside the applicants' control and that the legislative outcome was unintended and unfair in their circumstances. Therefore, the Tribunal determined it was appropriate to refer the application to the Minister for Home Affairs for consideration of intervention under section 351 of the Migration Act 1958.