Chung (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (subclass 482) – short-term stream, for the occupation of Café or Restaurant Manager. The applicant sought review of a delegate's decision to refuse the visa. The Tribunal was required to determine whether the applicant met the requirements for the visa, specifically concerning an approved nomination.

The primary legal issue before the Tribunal was whether the nomination identified in the visa application was approved, made by an approved work sponsor at the time of approval, and had not ceased. This requirement is stipulated by clause 482.212(1) of the relevant regulations. The Tribunal also considered the procedural history of the associated employer nomination, which had been refused and was the subject of ongoing judicial review.

The Tribunal reasoned that clause 482.212(1) imposes a mandatory requirement for an approved nomination for the grant of this visa. It noted that the delegate was not satisfied that the applicant's prospective employer had an approved nomination in place. Despite the applicant's request to defer the decision pending review of the employer nomination, the delegate correctly identified that the legislation did not permit such deferral. The Tribunal further observed that the employer nomination had been affirmed as refused by the Tribunal, and while judicial review was pending, the nomination remained refused at the time of the Tribunal's decision. The applicant confirmed understanding of the mandatory nomination requirement and did not wish to make further submissions regarding the lack of an approved nomination.

Consequently, as an essential requirement for the visa was not met, the Tribunal affirmed the delegate's decision not to grant the Temporary Skill Shortage (Class GK) visa.