Lou (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision to refuse a Temporary Skill Shortage (Class GK) visa (subclass 482), short-term stream, for the occupation of Café or Restaurant Manager. The applicant's prospective employer, Hawthorn Fresh Food Pty Ltd, had not secured an approved nomination for the position at the time of the delegate's decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 482.212(1) of the Migration Regulations 1994, which mandates that the nomination identified in the visa application must be approved, made by an approved work sponsor at the time of approval, and not have ceased. The Tribunal was required to determine if there was evidence of an approved nomination in place for the applicant.

The Tribunal reasoned that clause 482.212(1) sets out a mandatory criterion for the grant of this visa. It noted that the delegate had refused the application because no approved nomination existed. Despite being given an opportunity to respond, the applicant and her agent did not provide any evidence of an approved nomination. At the hearing, the applicant confirmed her understanding that an approved nomination was a requirement and that none existed. Consequently, the Tribunal found that the applicant failed to satisfy this essential criterion.

As a result of the applicant not meeting the mandatory requirement of having an approved nomination, the Tribunal affirmed the delegate's decision not to grant the Temporary Skill Shortage (Class GK) visa.