Liew (Migration)

This matter concerned an application for review of a decision to refuse a Temporary Skill Shortage (Class GK) visa (subclass 482). The applicant sought to have the decision of the Department of Home Affairs reviewed by the Administrative Appeals Tribunal. The Tribunal, constituted by Member Karen McNamara, considered whether the applicant met the requirements for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 482.212(1) of Schedule 2 to the Migration Regulations 1994. This clause mandates that the nomination associated with the visa application must have been approved and not subsequently ceased. The Tribunal also considered whether the applicant had been afforded procedural fairness in relation to the Tribunal's intention to affirm the decision based on the unapproved nomination.

The Tribunal reasoned that on 1 February 2022, it had affirmed the decision refusing the approval of the nomination made by Everise Food Pty Ltd. As the nomination had been refused, the applicant could not satisfy clause 482.212(1). The Tribunal had provided the applicant with an opportunity to comment on information that would lead to the affirmation of the decision, including the relevance of the unapproved nomination to clause 482.212(1). As the applicant failed to provide comments within the prescribed period, the Tribunal proceeded to make a decision without further comment, pursuant to section 359C(2) of the Migration Act 1958. The Tribunal found no evidence before it to suggest that the nomination had been approved, and therefore concluded that the applicant did not meet this essential criterion for the visa.

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