VINAS (Migration)

This matter concerned an appeal by a visa applicant against the refusal of a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream. The applicant was seeking to have the decision of the Department affirmed by the Tribunal. The primary issue revolved around the requirement for an approved nomination of an occupation by a standard business sponsor.

The Tribunal was required to determine whether the primary visa applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994, which mandates an approved nomination for the occupation relating to the applicant by a standard business sponsor that has not ceased. The applicant also sought to rely on information and evidence to validate the nomination application, despite having ceased employment with the nominating sponsor and securing work with another employer.

The Tribunal reasoned that its jurisdiction was confined to considering whether the applicant had an approved nomination at the time of the Tribunal's decision, and that information supporting the nomination application could not be relied upon to make findings in the visa application itself. It was established that the nomination application made by the applicant's sponsoring employer had been refused by the Department, and this refusal had been affirmed by the Tribunal. Consequently, there was no approved nomination at the time of the Tribunal's decision, a critical failure to meet the visa grant requirements. The Tribunal expressed sympathy for the applicant's circumstances, particularly during the COVID-19 pandemic, but was bound by the legislative requirements.

The Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas to the primary and secondary applicants. The secondary applicants, not being members of the primary applicant's family unit and not meeting the primary criteria in their own right, also had their applications refused.