Toqeer (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking a Temporary Skill Shortage (Class GK) visa (Subclass 482), short-term stream, for the occupation of Cook. The applicant's visa application was subject to an approved nomination by Ethinic Cuisines Pty Ltd. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically concerning the requirement for an approved nomination.

The central legal issue before the Tribunal was whether the nomination associated with the applicant's visa application had been approved, as mandated by clause 482.212(1) of the Migration Regulations 1994. The Tribunal also considered the implications of the applicant's failure to respond to a section 359A invitation issued by the Tribunal, which sought comments on information relevant to the nomination's status.

The Tribunal's reasoning focused on the fact that the nomination application made by Ethinic Cuisines Pty Ltd was refused by the Department of Home Affairs on 15 July 2019. Although the nominator sought merits review of this refusal, they subsequently withdrew that application on 6 October 2022. This withdrawal meant the nomination was never approved. The Tribunal had invited the applicant to respond to this information, highlighting that an approved nomination was a prerequisite for the visa grant and that reliance on this information would lead to affirming the decision under review. As the applicant failed to provide any response or request an extension of time, the Tribunal proceeded to a decision without further action, as permitted by section 359C(2) of the Migration Act 1958. The Tribunal applied the principle that where a primary criterion for a visa is not met, secondary criteria for accompanying applicants also cannot be met.

Consequently, the Tribunal affirmed the decision not to grant the Temporary Skill Shortage (Class GK) visa to the applicant and any secondary applicants.