Pendse (Migration)

The Administrative Appeals Tribunal considered a review application concerning a Temporary Skill Shortage (Class GK) visa (subclass 482) for the applicant, who was nominated for the position of Marketing Specialist by WALLAM AUTO BODY & TOWING PTY LTD. The core dispute arose from the refusal of the nominator's application to approve the nominated position, a decision that had been affirmed by the Tribunal in separate review proceedings. The applicant contended he had been employed as a Marketing Specialist by the nominator since August 2021 and provided documentation to support this claim, explaining that the nominator's business privacy concerns had hindered its ability to provide sufficient evidence for its review application.

The primary legal issue before the Tribunal was whether the applicant met the requirements for the Temporary Skill Shortage visa, specifically cl 482.212(1), which mandates that the nominated occupation must be approved. The Tribunal also considered the applicants' request for ministerial intervention under s 351 of the Migration Act 1958 (Cth), which allows the Minister to substitute a more favourable decision if it is in the public interest. This required the Tribunal to assess the applicants' personal circumstances, study and work history in Australia, and their intentions for the future.

The Tribunal found that the nomination for the Marketing Specialist position was not approved, and therefore, a fundamental requirement for the visa was not met. Consequently, the Tribunal affirmed the decision not to grant the visa. Despite this, the Tribunal acknowledged the applicants' request for ministerial intervention and, having considered the relevant guidelines and the applicants' personal circumstances, including their long-term residence in Australia, compliance with visa conditions, desire to have children, and aspirations for future careers, decided to refer the matter to the Department for consideration by the Minister. The Tribunal affirmed the decision not to grant the Temporary Skill Shortage (Class GK) visas.