Patel (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (Subclass 482) by the first applicant, Ms Patel, and a secondary application by another family member. The dispute arose after the Department of Home Affairs refused the nomination application made by Mister Close Investments Pty Ltd for the position of Pastrycook, a decision which was subsequently affirmed by the Tribunal. The primary legal issue before the Tribunal was whether Ms Patel met the requirements of cl.482.212(1) of Schedule 2 to the Migration Regulations 1994, which mandates that the visa application must be supported by an approved nomination.

The Tribunal was required to determine if the refusal of the nominated position's approval by the Department, and the Tribunal's affirmation of that refusal, meant that Ms Patel could not satisfy the visa grant requirements. Ms Patel, in response to a s.359A notice from the Tribunal, provided a letter detailing her family's long history in Australia, their compliance with visa conditions and laws, and their contributions to the economy. She also expressed her distress and confusion regarding the refusal, particularly in light of her family's desire for permanent residency and her perception that others with less English proficiency had achieved this status.

The Tribunal, constituted by Member Mary Sheargold, reasoned that cl.482.212(1) is a mandatory requirement for the grant of the visa. Despite acknowledging the heartfelt and genuine pleas of Ms Patel, and the clear distress her family was experiencing, the Tribunal found itself bound by the regulation. As the nomination application had been refused and this refusal affirmed, the Tribunal concluded that the essential requirement of an approved nomination was not met. Consequently, the Tribunal affirmed the decision not to grant the Temporary Skill Shortage (Class GK) visas to the applicants. The Tribunal also affirmed the refusal for the secondary applicant, as he did not meet the primary criteria in his own right and was not a member of a family unit of a Subclass 482 visa holder.