WOODROFFE (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant's employer's nomination had been approved, but the approval had since ceased under Regulation 2.75, which prescribes that nomination approval ceases 12 months after the date of approval. The applicant had previously sought to have a new nomination approved to rectify this issue, but the Department of Immigration advised that the new nomination application was incomplete and requested further information from the applicant. The applicant failed to respond to this request, and the Department subsequently made a decision on the visa application based on the available information, which did not include an approved nomination. The applicant sought review of this decision.

The Tribunal was required to determine whether the applicant met the requirements of clause 457.223(4)(a) of Schedule 2 to the Regulations, specifically concerning the existence of an approved nomination that had not ceased. This clause mandates that a nomination must have been approved under section 140GB of the Act, made by a standard business sponsor at the time of approval, and that the approval must not have ceased. The Tribunal also had regard to the applicant's previous communication with the Department expressing a desire for the Department to wait for the finalisation of a new nomination.

The Tribunal reasoned that while the applicant had previously met the criteria regarding skills, qualification, and employment background, the critical issue was the absence of a valid, un-ceased nomination at the time of the Department's decision. Despite the applicant's expressed intention to lodge a new nomination, the Department correctly noted that no such nomination had been lodged or approved. The Tribunal concluded that the Department's decision was made on the available information, which lacked the required approved nomination. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 457.223(4)(a) of Schedule 2 to the Regulations, implying that the reconsideration should address the nomination issue and other remaining criteria.