Lyu (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa, Subclass 482 (Temporary Skill Shortage) – medium-term stream, made by Lyu. The applicant's employer, Rock Denim Pty Ltd, had lodged a nomination application which was initially refused by a delegate of the Minister for Home Affairs. Rock Denim Pty Ltd subsequently applied for review of this refusal with the Tribunal. The Tribunal, constituted by Jade Murphy, was required to determine whether the position to which the visa application related was the subject of an approved nomination.

The central legal issue was the interpretation and application of clause 482.212(1) of Schedule 2 to the Regulations, which mandates that the nomination identified in the visa application must have been approved and made by an approved work sponsor, and must not have ceased. The Tribunal considered that the initial refusal of the nomination by the delegate was a critical factor. However, the Tribunal also noted its own subsequent decision on 20 February 2024, where it set aside the delegate's refusal and substituted a new decision approving the nomination.

The Tribunal reasoned that as the nomination, which was the subject of the visa application, had now been approved, the requirement under clause 482.212(1) was met. Consequently, the Tribunal found that the applicant satisfied this specific criterion for the Subclass 482 visa. The Tribunal concluded that the appropriate course of action was to remit the application to the Minister for reconsideration, with a direction that the applicant had met the criteria under clause 482.212(1).