Machado De Castro (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (subclass 482) by the applicant, Machado De Castro, and two other named applicants. The dispute arose because the visa application was not supported by an approved nomination by an approved standard business sponsor. The Administrative Appeals Tribunal was required to determine whether the applicant met the requirements for the visa, specifically concerning the nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 482.212(1) of the Migration Regulations 1994, which mandates that the nomination identified in the visa application must have been approved and made by an approved work sponsor who has not ceased to be a sponsor. The Tribunal also considered the secondary visa criteria for the other named applicants, who sought to be granted the visa as family members of the primary applicant.

The Tribunal reasoned that it was undisputed that at the time of the delegate's decision, the applicant was not the subject of an approved nomination by the nominating employer, Checkmat Tweed Heads Australia Pty Ltd. Furthermore, the Tribunal had previously found it had no jurisdiction to review the Department's decision to refuse that nomination. Consequently, there was no prospect of an approved nomination being in place. The Tribunal acknowledged the sympathetic circumstances, including the applicant's value to his current employer and the settlement of the other applicants, but concluded that these factors did not alter the legal requirement for an approved nomination. Clause 482.212(1) was found to confer no discretion to waive this essential requirement. The Tribunal also found that the other named applicants did not satisfy the secondary criteria as family members, nor did they meet the primary criteria in their own right.

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