VISHWA MITTAR INTERNATIONAL PTY LTD (Migration)

The Administrative Appeals Tribunal considered a decision to refuse the nomination of an occupation for a Subclass 457 visa. The applicant, Vishwa Mittar International Pty Ltd, sought to have its nomination approved, but the delegate refused this approval. The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination, specifically focusing on the requirements of regulation 2.72 of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant had satisfied regulation 2.72(5), which mandates that the nominator identify the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. The Tribunal also considered the implication of this requirement in conjunction with regulation 2.73 and departmental policy, which suggested that the identified person must be the same at the time of lodging the nomination application and when a decision is made on the criteria.

The Tribunal reasoned that regulation 2.72(5) requires the decision-maker to be satisfied that the person identified in the nomination application is indeed the individual who will undertake the nominated occupation. The Tribunal noted that departmental policy, as outlined in the Procedures Advice Manual 3 (PAM3), explicitly stated that there is no legislative provision allowing for amendment of this information and that if a change in the nominated person is necessary, a new nomination application must be lodged. Based on this interpretation and the evidence before it, the Tribunal concluded that the applicant had not met the requirements of regulation 2.72(5).

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.