Botha (Migration)

This matter concerned an appeal by Mr Botha against a decision regarding his application for a Subclass 187 (Regional Employer Nomination (Permanent)) visa, Temporary Residence Transition stream. The dispute centred on whether Mr Botha met the requirements of clause 187.223 of the Migration Regulations 1994, specifically concerning the approval of his employer's nomination for the position of Mixed Crop and Livestock Farmer. The case was heard by the Tribunal.

The primary legal issue before the Tribunal was to determine if Mr Botha satisfied clause 187.223, which outlines the criteria for an approved nomination in the Temporary Residence Transition stream. This involved assessing whether the nominated position was the subject of an approved nomination application under regulation 5.19(3), whether Mr Botha was identified as the relevant Subclass 457 visa holder, and whether the position was the same as that declared in the visa application. Further, the Tribunal had to consider if the nomination had been approved and not withdrawn, if the position was located in regional Australia, if the position remained available to the applicant, and if the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that while the initial nomination by Fawngrove Pty Ltd had been refused, this decision was subsequently reviewed. The Tribunal found that the nominated position of Mixed Crop and Livestock Farmer was indeed the subject of the relevant nomination application and that Mr Botha held the required Subclass 457 visa and was identified as such. Crucially, the Tribunal approved the nomination on 28 June 2018, finding that it had not been withdrawn, the position was regional and available, and that Mr Botha's visa application was made prior to this approval. Consequently, the Tribunal concluded that Mr Botha met all the requirements of clause 187.223.

As the Tribunal found that Mr Botha met the requirements of clause 187.223 and the secondary applicants met clause 187.311, the Tribunal remitted the visa applications to the Minister for consideration of the remaining visa criteria.