HONG (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (subclass 482) – medium-term stream. The primary applicant sought the visa based on an approved position nomination by a business. The secondary applicant relied on her status as a member of the primary applicant's family unit. The Administrative Appeals Tribunal was required to determine whether the primary applicant met the requirements for the visa.

The central legal issue before the Tribunal was whether the primary applicant satisfied the requirements of clause 482.212(1)(a) of the Migration Regulations 1994, which mandates that the nomination identified in the visa application must have been approved and not ceased. The Tribunal also considered whether the secondary applicant met the requirements of clause 482.312, contingent on the primary applicant's eligibility.

The Tribunal reasoned that the nominating business's application for approval of the nomination was refused by the Department and this decision was affirmed on review by the Tribunal, ultimately being treated as a withdrawal. Consequently, the nomination was not approved. The Tribunal had notified the applicants under section 359A of the Migration Act 1958 that they might not satisfy clause 482.212(1)(a), but the applicants did not respond. As the primary applicant was not the subject of an approved nomination, they failed to meet a primary criterion for the visa. Since the primary applicant did not satisfy the visa requirements, the secondary applicant, who relied on her family unit status, also failed to meet the relevant criteria.

The Tribunal affirmed the decision not to grant the Temporary Skill Shortage (Class GK) visas to the applicants.