Kearney (Migration)

This matter concerned applications for Temporary Skill Shortage (Class GK) visas (subclass 482) in the medium-term stream. The primary applicant sought a visa as a carpenter, and the second applicant sought a visa as a member of the family unit. The dispute arose from the refusal of the nomination application for the primary applicant, which was subsequently reviewed by the Tribunal. The decision was made by Member Amanda Mendes Da Costa of the Tribunal.

The central legal issue before the Tribunal was whether the primary applicant was the subject of an approved nomination, as required by clause 482.212(1) of Schedule 2 to the Regulations. This clause mandates that the nomination identified in the visa application must have been approved, made by an approved work sponsor, and not have ceased. The Tribunal also considered the implications of this finding for the second applicant's eligibility as a member of the family unit.

The Tribunal reasoned that while the Minister's delegate had initially refused the nomination application, the Tribunal itself had, on review, set aside that decision and substituted its own decision to approve the nomination. Consequently, the Tribunal was satisfied that the nomination met the requirements of clause 482.212(1). Based on this finding, the Tribunal determined that the primary applicant met the specified criteria for the visa. The Tribunal then concluded that the second applicant, as a member of the family unit of the primary applicant who had met the primary criteria, should have her application reconsidered.

Accordingly, the Tribunal remitted the applications for Temporary Skill Shortage (Class GK) visas for reconsideration by the Minister. The remittal was made with the direction that the primary applicant met the criteria under clause 482.212(1), and that the second applicant's application should be reconsidered on the basis of her family unit relationship to the primary applicant.