De Vincenzo (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa under the direct entry stream. The applicant's nominator, Robtao Pty Ltd, had its nomination for the position of café or restaurant manager initially refused by the Department of Immigration. This refusal led to the refusal of the applicant's visa application. The nominator subsequently sought review of the nomination refusal by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of cl.187.233 of the Migration Regulations 1994, which pertains to the nomination of a position for the direct entry stream. This clause requires, among other things, that the nominated position be located in regional Australia, that the nominator is the intended employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal found that the requirements of cl.187.233 were met. It noted that the nominator had advised the position remained available and that the visa application was made concurrently with the nomination. Crucially, the Tribunal had previously set aside the Department's refusal of the nomination and substituted a decision to approve it. Based on the evidence before it, the Tribunal was satisfied that the nominator was the intended employer, the nomination was approved and not withdrawn, and there was no adverse information known to Immigration.

Consequently, the Tribunal remitted the applicant's visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria under cl.187.233. The applications of the applicant's family members, who applied as members of the family unit, were to be determined by reference to the outcome of the applicant's application.