On 31 August 2018, the AAT published a decision which includes an order directing that its decision act as a guidance decision in the AAT in similar fact cases in accordance with Section 353B of the Migration Act 1958.
A guidance decision is a decision that must be followed by the AAT in all future decisions of a similar nature. Subsection 353B(2), however, provides that the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.
The decision, in this case, is B&G Green Trading Pty Ltd (Migration)  AATA 3190 (31 August 2018). The basic facts and the Tribunal’s decision are summarised below:
B&G Green Trading Pty Ltd 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.
As discussed in the decision of the AAT, there are three critical aspects to the temporary skilled work visa scheme. First, a sponsor must be approved under s.140E of the Act. Secondly, the approved sponsor must nominate an occupation, which must be approved under s.140GB of the Act. The nomination must be approved if the prescribed criteria are satisfied and those criteria are set out in r.2.72 of the Regulations. Thirdly, the visa applicant must satisfy the relevant criteria set out in Schedule 2 of the Regulations that apply to the class of visa in respect of which the sponsor has approval.
On 18 April 2017, the Government announced changes to the employer-sponsored temporary and permanent skilled work visa arrangements which included repealing the subclass 457 visa and introducing a new Temporary Skill Shortage (TSS) visa in March 2018 (known as a subclass 482).
The subclass 482 visa was introduced effective from 18 March 2018. As a result, the Regulations were amended to repeal r.2.72 and replace it with a new provision. The issue in the present case is whether the applicant meets the criteria for approval of the nomination.
The Tribunal decided, amongst other things, that the amended r.2.72 does not apply to nominations which were not finalised as at 18 March 2018 where there was a proposed applicant for a subclass 457 visa but no such application had been finalised by 18 March 2018. It found that the amended r.2.72 does not apply to the assessment of the nomination of the applicant in this case.
The Tribunal also found that the old r.2.72 does not apply to these nominations.
On this basis, the Tribunal found there are no criteria against which to assess the nomination. As s.140GB(2) is conditional on such an assessment based on the prescribed criteria, the nomination cannot be approved. The Tribunal, therefore, affirmed the decision under review.
The significance of this guidance decision is that the Tribunal must follow it in all similar fact cases unless it is clearly distinguishable. The AAT has identified a number of review applications before it with similar circumstances and/or facts that may be affected by this guidance decision.