Kairay (Migration)

This matter concerned an appeal by an applicant for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, against the decision of the Department of Immigration to refuse the visa. The applicant sought to have the decision reviewed by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for the visa, specifically concerning the presence of "adverse information" about the nominating employer and the continued availability of the nominated position. The Tribunal was required to determine if any adverse information known to Immigration about the nominator was such that it was reasonable to disregard it, and whether the position offered to the applicant was still available.

The Tribunal considered the definition of "adverse information" as set out in regulation 1.13A, which includes contraventions of law, investigations, disciplinary actions, insolvency, or the provision of false or misleading information. The applicant provided evidence that the sponsoring company had been barred from sponsoring further visas and that the business had ceased operating while the applicant was overseas. The Tribunal noted that the applicant had not responded to a departmental invitation to comment on adverse information, attributing this to his absence in India and reliance on his migration agent. Crucially, the Tribunal found that the nominated position was no longer available because the business had closed, meaning a key criterion for the visa could not be met, regardless of other factors.

The Tribunal affirmed the decision not to grant the visa. It found that the nominated position was no longer available to the applicant due to the closure of the business, and therefore, the applicant did not meet the requirements for the visa. The Tribunal also noted that a secondary applicant, presumably a family member, did not meet the primary criteria for the visa in her own right.