Grant (Migration)

The Administrative Appeals Tribunal considered an application for a Temporary Skill Shortage (Class GK) visa, subclass 482, medium-term stream, made by Martin Gerard Grant. The dispute concerned whether the nominated position of welder was genuine and whether Mr Grant's intention to perform that occupation was genuine, as required by clause 482.212(2) of Schedule 2 to the Migration Regulations 1994. The delegate had previously found the position not to be genuine, primarily because Mr Grant was the sole director and shareholder of the sponsoring employer, Derrygal Group Pty Ltd, and its only direct, salaried employee.

The Tribunal was required to determine if the nominated position was genuine and if Mr Grant genuinely intended to perform the occupation, despite being the self-sponsoring director of the company. This involved assessing whether the position was created primarily to secure Mr Grant's entry or stay in Australia, rather than to address a genuine temporary skill shortage. The Tribunal also had to consider the evidence provided by Mr Grant, including his employment history, his role in the business, and the company's development, such as its business connections, infrastructure projects, and the development of a subcontracting crew.

In its reasoning, the Tribunal acknowledged that policy settings do not prohibit individuals from sponsoring themselves. However, it emphasised that in such self-sponsorship cases, there must be an independent reason for the position's creation beyond facilitating a long-term stay or a pathway to permanent migration. While Mr Grant provided updated and detailed evidence, including past and current subcontracting projects, the Tribunal was not satisfied that this evidence demonstrated a genuine economic benefit to Australia. The Tribunal noted that Mr Grant had been working as a welder for the sponsoring company since 2017 and was now its sole director and shareholder. Despite Mr Grant's claims of unsuccessful attempts to recruit other suitable candidates, the Tribunal concluded that he was essentially self-sponsoring.

Consequently, the Tribunal found that Mr Grant did not meet the requirements of subclause 482.212(2). Accordingly, the Tribunal remitted the application for reconsideration by the Minister, with a direction that Mr Grant meets the criteria under clause 482.212(2) of Schedule 2 to the Regulations.