Nguyen (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Temporary Skill Shortage (Class GK) visa, subclass 482, medium-term stream. The applicant sought to work as a Computer Network and Systems Engineer, but the core issue was that the nomination for this visa was not approved by an approved standard business sponsor and was no longer under review by the Tribunal. The decision was made by Alison Mercer, a Member of the Tribunal.

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 have been approved and made by an approved work sponsor. The Tribunal was required to determine if the circumstances surrounding the nomination refusal and subsequent deregistration and re-registration of the sponsoring company affected the validity of the nomination for the purpose of the visa application.

The Tribunal reasoned that the nomination by Angelic Sound and Lighting Pty Ltd had been refused by the Department, and a prior Tribunal decision had found it had no jurisdiction to review this refusal because the company had been deregistered at the time. Although the company was subsequently re-registered and operational, this did not alter the fact that the nomination itself had not been approved and was no longer under review. The Tribunal noted that clause 482.212(1) does not grant it discretion to overlook this requirement, even in the presence of compassionate circumstances. Consequently, the Tribunal concluded that an essential requirement for the visa was not met.

The Tribunal affirmed the decision not to grant the applicant the Temporary Skill Shortage (Class GK) visa. The Tribunal also advised the applicant to seek advice from a registered migration agent or migration lawyer regarding other potential visa options and noted the possibility of seeking Ministerial intervention under s.351 of the Migration Act 1958 if the applicant believed their circumstances were unique or exceptional.