Gutierres (Migration)

The Administrative Appeals Tribunal considered an application for review concerning a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream. The applicant, Mr. Gutierres, sought a permanent visa as a Primary Products Inspector, based on an approved nomination by The Trustee for Sodhi Family Trust. The Department of Immigration and Border Protection had refused to approve the nomination, leading to the applicant's appeal to the Tribunal.

The central legal issue before the Tribunal was whether the applicant satisfied clause 187.233 of the Migration Regulations 1994, specifically concerning the approval and validity of the employer's nomination. This clause requires, among other things, that the nominated position be located in regional Australia, that the nominator be the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information about the nominator or associated persons, that the position remains available, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the nomination had been approved by the Department and had not been withdrawn. It also determined that there was no adverse information known to Immigration regarding the nominator, Mrs. Sodhi, or associated persons. Furthermore, the Tribunal was satisfied that the position remained available to the applicant, as evidenced by a recent employment contract, and that the visa application was lodged within the prescribed six-month timeframe after the nomination's approval.

Consequently, the Tribunal set aside the Department's decision and remitted the primary applicant's visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria under clause 187.233. The Tribunal also remitted the secondary applicants' visa applications for reconsideration.