Theodora (Migration)

The Administrative Appeals Tribunal considered an application for a Temporary Skill Shortage (Class GK) visa, Subclass 482, in the short-term stream, for the position of Café or Restaurant Manager. The applicant sought review of a decision to refuse her visa application.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 482.212(1) of Schedule 2 of the Migration Regulations 1994. This clause mandates that the nomination identified in the visa application must have been approved, made by an approved work sponsor at the time of approval, and not have ceased.

The Tribunal affirmed the delegate's decision that the applicant did not meet this requirement. It was established that the applicant's sponsoring employer, Fisher & Oakley Pty Ltd, had its nomination application refused. This refusal was subsequently affirmed by the Tribunal on review. The applicant contended that the initial refusal was based on a misunderstanding of the business as a predominantly takeaway café, when it was in fact a restaurant with a liquor licence serving eat-in and takeaway meals. She also explained that her employment hours were reduced due to the COVID-19 pandemic and that she had resigned from Fisher & Oakley Pty Ltd in August 2021 to take up part-time employment elsewhere, confirming she was not the subject of an approved nomination by any employer. Mr Fisher, a director of the nominating company, corroborated that the nomination was refused on the basis that the restaurant was a "limited-service restaurant," despite serving dine-in and takeaway meals and holding a liquor licence for in-house consumption.

Given that a fundamental requirement for the visa, namely an approved nomination, was not met, the Tribunal affirmed the decision not to grant the applicant the Temporary Skill Shortage (Class GK) visa.