Radhakrishnan (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (Subclass 482) – medium-term stream, where the applicant was nominated for the occupation of Motor Mechanic (General). The primary dispute revolved around whether the applicant had substantially complied with the conditions of her previous subclass 457 visa, specifically condition 8107(b) which prohibited her from working in a position or occupation inconsistent with the one for which the visa was granted. The delegate had found that as a co-director of the nominating company, the applicant's time was primarily spent on managing the business, which was inconsistent with the nominated occupation. The case was heard by Amanda Mendes Da Costa.

The legal issue before the Tribunal was whether the applicant met the requirements of clause 482.211 of Schedule 2 to the Regulations, which mandates substantial compliance with the conditions of previous substantive and bridging visas. This required the Tribunal to assess whether the applicant's activities as a co-director of the nominating company were inconsistent with her role as a Motor Mechanic (General) during the period she held her subclass 457 visa.

The Tribunal reasoned that while the delegate had acknowledged the applicant might have performed some tasks of the nominated occupation, the finding of inconsistency was based on the applicant's directorial duties. However, the Tribunal considered the extensive explanatory memorandum provided by the applicant, detailing the business's financial struggles, the difficulties in employing suitable mechanics, and the applicant's eventual assumption of mechanical repair duties. The Tribunal concluded that the applicant had substantially complied with her previous visa conditions.

Consequently, the Tribunal remitted the applications for Temporary Skill Shortage (Class GK) visas for reconsideration. The Tribunal directed that the first applicant met the criteria under cl 482.211, and that the applications of the second and third applicants, as members of the family unit, should also be reconsidered on this basis.