Zhang (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse to grant Temporary Business Entry (Class UC) visas, specifically Subclass 457 (Temporary Work (Skilled)), to Mr Wei Zhang and his wife, Ms Xiaoyu Yu. The applicants had lodged their visa applications on 3 March 2017. The refusal was based on the grounds that the nominated position for Mr Zhang was not approved by a standard business sponsor, as required by Clause 457.223(4)(a) of the Migration Regulations 1994. The Tribunal was asked to determine whether the applicants met the criteria for the visa.

The central legal issue before the Tribunal was whether the applicants satisfied Clause 457.223(4)(a) of the Regulations, which mandates an approved nomination by a standard business sponsor that has not ceased. The Tribunal noted that the nominator company's application for approval of the nominated position had been refused by a delegate and this refusal was affirmed on review by the Tribunal. Consequently, the nominator's application for the nominated position had not been approved. The applicants contended that the refusal was unfair, particularly as the occupation of Property Manager had been removed from the list of eligible occupations after their applications were lodged, and Mr Zhang was indispensable to the company.

The Tribunal reasoned that Clause 457.223(4)(a) requires an *approved* nomination. As the nominator's application for approval of the nominated position had been refused and that refusal affirmed, there was no approved nomination. The Tribunal acknowledged the applicant's submission that the occupation was removed from the eligible list after the application date and that he was indispensable to the company. However, the Tribunal found that the regulations required the nomination to be approved at the time of the decision, and the subsequent removal of the occupation from the eligible list, while unfortunate for the applicant, did not alter the fact that the nomination itself had not been approved. The Tribunal also noted that the applicants' child was recently born in Australia, but this fact did not alter the assessment of the visa criteria.

The Tribunal affirmed the delegate's decision to refuse the visa applications.