Choi (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding the refusal of a Temporary Skill Shortage (Class GK) visa, subclass 482, for a newborn child. The applicant was a secondary applicant, the newborn child of the primary applicant, Ms Heejin Kim. The sponsor, Home Plus Stanthorpe Pty Ltd, had nominated Ms Kim for the position of Café or restaurant manager. The applicant's visa application was made after the nomination was lodged and after the applicant's birth.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination, as required by the Migration Regulations. Specifically, the Tribunal had to determine if the applicant met the criteria for a primary or secondary applicant under clause 482.312 of Schedule 2 to the Regulations, which necessitates being identified in an approved nomination application.

The Tribunal reasoned that clause 482.212(1) of the Regulations mandates that the nomination identified in the visa application must be approved. The evidence before the Tribunal indicated that the applicant was not the subject of an approved nomination, either as a primary or secondary applicant. The Tribunal had invited the applicant to respond to information that the primary applicant's nomination had been refused, but no response was received by the specified deadline. Consequently, the Tribunal found that the applicant could not comply with the essential requirement of having an approved nomination.

The Tribunal affirmed the decision not to grant the Temporary Skill Shortage (Class GK) visa to the applicant, as the fundamental requirement of an approved nomination was not met.