Gallo Stampino (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision by the Department of Immigration and Border Protection to refuse to approve a nomination for a Subclass 186 Employer Nomination Scheme visa. The applicant for review was the nominating employer, Design Intent Commissioning Pty Ltd, and the primary applicant was the prospective employee.

The Tribunal was required to determine whether the primary applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines several requirements for the nomination, including that the position must be nominated in an application seeking to meet subregulation 5.19(3), the applicant must be identified as the holder of a Subclass 457 visa in relation to that nomination, and a specific declaration must have been made in the visa application. Crucially, the clause also requires that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or their associates (or such information can be disregarded), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nominating employer, represented by Ms Vicki Barfett, had applied for approval of the position of Electrical Engineering Draftsperson. The Tribunal noted that the nomination had been approved by the Tribunal itself, setting aside the Department's earlier refusal, and had not been withdrawn. It was also satisfied that there was no adverse information concerning the company or its director, Mr Warren Barfett, who made the nomination, or their associates. The Tribunal confirmed that the employment contract demonstrated the position was still available and that the visa application was made within the prescribed six-month period after the nomination's approval.

Consequently, the Tribunal remitted the primary visa applicant’s application to the Minister for reconsideration of the remaining visa criteria. The Tribunal also remitted the secondary applicants’ visa applications for reconsideration.