Kuo (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (subclass 482) – Short-term stream. The applicant was seeking review of a decision not to grant the visa. The primary issue was whether the applicant met the requirements for an approved nomination under clause 482.212(1) of the Migration Regulations 1994.

The Tribunal was required to determine if the nomination identified in the visa application had been approved by an approved sponsor and had not ceased. The Tribunal also had to consider the implications of the nominator, Signature Tastes Pty Ltd, not having an approved nomination for the applicant at the time of the delegate's decision, and the lack of any prospect of such a nomination being approved.

The Tribunal reasoned that clause 482.212(1) mandates that a visa application must be accompanied by an approved nomination. It was not disputed that Signature Tastes Pty Ltd did not have an approved nomination for the applicant, and there was no possibility of this requirement being met. The Tribunal noted that while there were sympathetic circumstances, including the applicant's value as an employee and the business sale, these factors did not permit it to overlook the mandatory nature of the nomination requirement. The Tribunal concluded that as an essential criterion for the visa was not met, it had no discretion to waive this requirement.

Consequently, the Tribunal affirmed the decision not to grant the subclass 482 visa to the primary applicant. The Tribunal also affirmed the decision not to grant the visa to the second applicant, who was a member of the family unit, as she did not meet the secondary criteria and had not demonstrated she met the primary criteria in her own right. The Tribunal advised the applicant to seek advice from a registered migration agent or migration lawyer regarding other visa options and noted the possibility of seeking Ministerial intervention under s 351 of the Migration Act 1958.