Cam (Migration) [2025] ARTA 297 (19 February 2025)

Decision and			
Reasons for Decision 

Applicant:	Mr Onur Cam
Respondent:	Minister for Immigration and Multicultural Affairs 
Tribunal Number:	2219153
Tribunal:	Joanne Bakas
Place:	Adelaide
Date:	19 February 2025
Decision:	The Tribunal affirms the decision under review.

Statement made on 19 February 2025 at 5:31pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – marketing specialist – subject of approved position nomination – refusal of related nomination application affirmed on review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

CASES
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Haq [2019] FCAFC 7
MIBP v Singh [2014] FCAFC 1

Statement of reasons

application for review
1.  	This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 December 2022 to refuse to grant the visa applicant a GK – Temporary Skill Shortage (Class GK) Subclass 482 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.  	The visa applicant applied for the visa on 27 January 2022. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Marketing Specialist (ANZSCO 225113).
3.  	The delegate refused to grant the visa on the basis that the applicant did not meet cl 482.212(1) of Schedule 2 to the Regulations because the nomination of the position had not been approved (482.212(1)(a)).
4.  	The applicant applied to the Tribunal on 27 December 2022 for review of the delegate’s decision.
5.  	On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.    
6.  	Mr Onur Cam (the applicant) appeared before the Tribunal on 18 February 2025 to give evidence and present arguments via video on MS Teams.
7.  	The applicant was represented in relation to the review and their representative also attended the hearing via video on MS Teams.
8.  	For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
9.  	The issue in the present case is whether there is an approved nomination of the position.
Requirement for an approved nomination
10.  	Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.
11.  	The applicant was nominated by Beard Market Pty Ltd for a position in the occupation of Marketing Specialist (ANZSCO 225113). The Department refused the nomination application made by Beard Market Pty Ltd and Beard Market Pty Ltd applied for review of that decision,
12.  	On 9 January 2025 the Tribunal decided to affirm the Department’s decision refusing the approval of the nomination made by Beard Market Pty Ltd.
13.  	At the hearing of 18 February 2025, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria are satisfied and that in his case, his visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved. 
14.  	The applicant acknowledged that there is no approved nomination in place but asked the Tribunal to adjourn making its decision for some 3 to 6 months to provide him with some time to secure a new employer to nominate him. He stated that he is very skilled in this area of work. He has been offered employment but the employer is generally not willing to nominate him in an application with the Department.
15.  	On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. The Tribunal is not satisfied that the visa application is the subject of an approved nomination (pursuant to cl 482.212(1)) because there is no approved nomination at the time of the Tribunal’s decision.
16.  	Therefore, cl 482.2121(1) is not met.
17.  	The Tribunal considered the applicant’s request to adjourn the review to provide the applicant with some time to try to secure another employer to nominate him. 
18.  	In doing so, the Tribunal has considered the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection where analogous issues were discussed. Further, in the decision of MIBP v Haq6, the Full Federal Court found that it was not legally unreasonable for the Tribunal to refuse to adjourn the hearing and defer making its decision where, even if the postponement was granted, it was uncertain if and when the applicant would be able to place himself in a position to satisfy the requirements for the visa based on his oral evidence at hearing.
19.  	The Tribunal considered the circumstances of this case, and the consequences for the applicant if the Tribunal does not postpone making its decision.
20.  	The Tribunal has also had regard to the fact that the nomination application was affirmed by the Tribunal on 9 January 2025 and that the applicant would have been aware of that at that time or shortly thereafter. No documentary evidence was provided to the Tribunal that the applicant is currently in negotiations with a potential nominating business.
21.  	There is also no certainty when or if the applicant would be able to place himself in a position to satisfy the requirements for the visa.  In these circumstances, the Tribunal is not disposed to delaying the making of a decision indefinitely. 
22.  	For the reasons stated above, the Tribunal has decided not to exercise its discretion under s 82 of the Administrative Review Tribunal Act 2024 of the Act to adjourn the review.
decision
23.  	The Tribunal affirms the decision under review.

Date(s) of hearing:	18 February 2025    
Representative for the Applicant:	Mr Nic Soltani (MARN: 1387104)