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Administrative Appeals Tribunal, Redfern DP, Mercer M, Case no.1620400, 31 August 2018

B&G Green Trading Pty Ltd (the nominating business) applied for approval of a nomination of an occupation for a subclass 457 visa. A delegate of the Minister for Immigration and Border Protection refused the nomination because they were not satisfied that the nomination satisfied certain criteria.

Relating to its review of the delegate’s original decision to refuse the nomination, the AAT issued an order directing that its decision act as a guidance decision.[1] A guidance decision is a decision that must be followed by the AAT in all future decisions of a similar nature.

The AAT made the guidance decision order to reflect legislative amendments[2] that occurred following the original decision by the delegate. These amendments, which came into effect on 18 March 2018, apply to an applicant seeking review of a business nomination application which was lodged in a specific period of time.[3] The amendments repealed the Temporary Work (Skilled) visa subclass, introduced the new Temporary Skill Shortage visa subclass, and replaced the criteria[4] which nomination applications are required to meet.

In its decision, the AAT found that neither the old or amended criteria applied and concluded that if there were no criteria to compare an application against then the business nomination application could not be approved. As a result of this finding, the AAT affirmed the decision to refuse the applicant’s nomination.

The AAT has already identified a number of review applications before it with similar circumstances and/or facts that may be affected be this guidance decision.

Read the full written decision on AustLii.



[1] Section 353B of the Migration Act 1958

[2] Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018

[3] Sections 140GB of the Migration Act 1958

[4] Regulation 2.72 of the Migration Regulations 1994