Federal Court. Do the words “an applicant…for a visa of a prescribed kind” in s 140GB(1)(a) of the Migration Act 1958 (Cth) qualify a visa applicant, not the nomination? Was a nomination of a visa applicant made under s 140GB(1)(b)? Was a nomination for a subclass 482 visa capable of satisfying cl 457.223(4)(a)(i) of Schedule 2 to the Migration Regulations 1994 (Cth)?
On 11 March 2016, the appellants (being a family, with the first appellant being the primary visa applicant) applied for a subclass 457 visa. To be granted the visa, the first appellant was required to satisfy cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth):
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75;
On 21 April 2016, the first appellant’s employer’s application to nominate the first appellant in relation to a subclass 457 visa was approved pursuant to s 140GB(2) of the Migration Act 1958 (Cth) (first nomination). Sections 140GB(1)-(2) provided as follows:
140GB Minister to approve nominations
(1) An approved sponsor may nominate:
(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant’s proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2) The Minister must approve an approved sponsor’s nomination if:
(a) in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC—the labour market testing condition under section 140GBA is satisfied; and
(b) in any case—the prescribed criteria are satisfied.
…
On 30 March 2017, a delegate of the first respondent (Minister) refused to grant the appellants subclass 457 visas, on the basis that the first appellant did not satisfy public interest criterion (PIC) 4020 of Schedule 4 to the Regulations and therefore did not satisfy cl 457.224.
On 11 April 2017, the appellants applied to the second respondent (Tribunal) for review of the decision to refuse to grant the subclass 457 visas.
On 21 April 2017, the first nomination expired, as per r 2.75(2)(b) of the Regulations. The nominator did not apply for a new nomination for a subclass 457 visa ever since.
On 18 March 2018, the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (Amending Regulations) commenced operation. The Amending Regulations precluded further applications for subclass 457 visas and created a new subclass, namely 482.
On 14 October 2019, the first appellant’s employer application to nominate the first appellant in relation to a subclass 482 visa was approved pursuant to s 140GB(2) (second nomination).
The first appellant submitted before the Tribunal that the second satisfied cl 457.223(4)(a), even though it was expressed to be a nomination for a subclass 482 visa.
On 6 January 2020, the Tribunal affirmed the decision to refuse to grant the subclass 457 visas. The Tribunal found that PIC 4020 was satisfied. However, it found that, because of the effect of the Amending Regulations, cl 457.223(4)(a) was not satisfied. That is because the Tribunal found that it was not open to it consider the second nomination as satisfying the latter provision.
The appellants then unsuccessfully applied to the Federal Circuit Court for judicial review of the Tribunal’s decision, after which they eventually appealed to the Federal Court (FCA), arguing through ground 1 that the primary judge erred by finding that it was not open to the Tribunal to consider the second nomination as satisfying cl 457.223(4)(a).
Some of the questions to the FCA were as follows:
Question 1: Do the words “an applicant…for a visa of a prescribed kind” in s 140GB(1)(a) of the Migration Act 1958 (Cth) qualify a visa applicant, not the nomination?
Question 2: Was the second nomination made under s 140GB(1)(b)?
Question 3: Was the second nomination capable of satisfying cl 457.223(4)(a)(i) of Schedule 2 to the Migration Regulations 1994 (Cth)?
The FCA answered those questions as follows: