Cardiel Garcia (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision by the Department of Immigration and Border Protection concerning a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, for the position of Restaurant Manager. The applicant was Cardiel Garcia, and the nominating employer was Byron Bay Cantina Pty Ltd, represented by its director, Mr Fergus Sillar.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994. This clause, as applicable, stipulated several conditions, including that the position must be the subject of an approved nomination located in regional Australia, that the nominator must be the prospective employer, that the nomination must not have been withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), that the position must remain available to the applicant, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the applicant satisfied clause 187.233. It noted that the nomination was made by Mr Sillar, who was also the director of the employing company and signed the employment contract. The Tribunal confirmed that the nomination had been approved and not withdrawn, and no adverse information was presented regarding Mr Sillar. Furthermore, a recent employment contract indicated the position remained available, and the visa application was lodged within the six-month timeframe after the nomination approval.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria. The Tribunal directed that the first applicant met the criteria under clause 187.233. The Tribunal also remitted the secondary applicants' visa applications for reconsideration.