Bains (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 187 (Regional Sponsored Migration Scheme) visa application under the direct entry stream. The primary dispute revolved around the refusal of the nomination of a position for the first applicant, which subsequently impacted the visa applications of other family unit members.

The Tribunal was required to determine whether the nomination of the position met the requirements of clause 187.233 of Schedule 2 to the relevant regulations. This clause outlines several criteria, including that the nominated position must be located in regional Australia, the employer who made the nomination must be the one who will employ the applicant, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available, and the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the nominating employer, J & M Callaway Pty Ltd, had applied for the approval of a Café or Restaurant Manager position for the applicant. Although the Department initially refused this nomination, the Tribunal, on review, set aside that decision and substituted a decision to approve the nomination under subregulation 5.19(4). Consequently, the Tribunal concluded that clause 187.233 was satisfied.

Given that the first applicant met the requirements of clause 187.233, the Tribunal remitted the visa application for reconsideration of the remaining criteria. Furthermore, the applications of the second, third, and fourth applicants, who were family unit members of the first applicant, were also remitted for full reconsideration.