1501183 (Migration)

The Administrative Appeals Tribunal considered the applications of a first named applicant and two other applicants, who were members of the first applicant's family unit, for Employer Nomination (Residence) (Class BW) visas. The dispute centred on whether the first applicant met the criteria for a Subclass 857 (Regional Sponsored Migration Scheme) visa, specifically clause 857.221 of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was to determine if the first named applicant satisfied clause 857.221, which requires that at the time of decision, the appointment in the employer's business for which the applicant was nominated had been approved, not withdrawn, continued to satisfy the criteria for approval under regulation 5.19(4), and remained available to the applicant.

The Tribunal reasoned that the nomination by Wunda Project Australia Pty Ltd was approved by the Department on 3 June 2011, satisfying clause 857.221(a). A letter from the company director confirmed the availability of a position, indicating the nomination had not been withdrawn and the appointment remained available, thus meeting clauses 857.221(b) and (d). The Tribunal found no evidence to suggest the appointment no longer satisfied regulation 5.19(4), concluding that clause 857.221(c) was also met. Consequently, the Tribunal was satisfied that clause 857.221 was met in its entirety.

The Tribunal remitted the visa applications for reconsideration by the Minister, directing that the first named applicant meets clause 857.221. The applications of the second and third named applicants, being dependent on the first applicant's application, would be determined following this reconsideration.