Kim (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa, subclass 482, short-term stream, for the occupation of Cafe or Restaurant Manager. The applicant sought review of a decision not to grant the visa. The Tribunal was required to determine whether the applicant met the requirements of clause 482.212(1) of Schedule 2 to the Migration Regulations 1994.

The central legal issue was whether the applicant's nomination, as identified in the visa application, had been approved and met the specified criteria. Clause 482.212(1) mandates that the nomination must be approved, made by an approved work sponsor at the time of approval, and must not have ceased. The Tribunal noted that the applicant was aware from the delegate's decision that she did not have an approved nomination from the sponsor, WWG Cooperation Pty Ltd.

The Tribunal reasoned that there was no information before it, nor had any been provided by the applicant, to indicate the status of her employment, the sponsor's intention to continue her employment, or any review of a nomination refusal. The time for the nominator to lodge any review had passed, and the Tribunal had no information suggesting a favourable nomination outcome. Furthermore, there was no indication that the applicant had sought an alternative visa or requested a deferral of the review process. The Tribunal concluded that it had no discretion to waive the formal requirements of the Act and Regulations. Consequently, the Tribunal found that the requirements of clause 482.212(1) were not met. The Tribunal affirmed the decision not to grant the visa.