Lee (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (subclass 482) in the medium-term stream. The applicant sought review of a decision not to grant this visa. The Tribunal, presided over by Sheridan Aster, was required to determine whether the applicant had met the criteria for the visa, specifically concerning substantial compliance with previous visa conditions.

The primary legal issue before the Tribunal was whether the applicant had substantially complied with the conditions of her previous Subclass 457 visa, as required by clause 482.211 of the Migration Regulations. This condition mandates that an applicant, if in Australia, must have complied substantially with the conditions of their last substantive visa and any subsequent bridging visas. The applicant's Subclass 457 visa was granted in February 2018 and was subject to conditions 8107 (requiring the visa holder to remain employed by the sponsoring employer and not work inconsistently with the visa grant) and 8501 (requiring the maintenance of adequate health insurance).

The Tribunal found that the applicant had not substantially complied with visa condition 8107. While acknowledging that the cancellation of her sponsoring employer's business licence and sponsorship approval was beyond the applicant's control, the Tribunal noted that the applicant ceased employment in September 2018. She did not apply for a new visa or depart Australia within the prescribed 60-day period, and her application for the current visa was not lodged until May 2021, nearly three years after ceasing employment. The Tribunal concluded that this failure to comply with the employment condition, and the subsequent cancellation of her Subclass 457 visa, meant that clause 482.211 was not met.

As a result of the failure to satisfy this essential visa requirement, the Tribunal affirmed the decision not to grant the applicant the Temporary Skill Shortage (Class GK) visa.