Ko (Migration)

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa under the direct entry stream. The applicant sought to have the decision to refuse her visa application reconsidered. The Tribunal was required to determine whether the applicant satisfied clause 187.233 of the Migration Regulations 1994, which pertains to the nomination of a position.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.233. This clause mandates that the position be located in regional Australia, be the subject of an approved nomination, and that the nominator be the prospective employer. Further requirements include that the nomination has not been withdrawn, there is no adverse information concerning the nominator or associated persons, the position remains available, and the visa application was lodged within six months of the nomination's approval. The Tribunal also considered the application of a second applicant, who applied as a member of the first applicant's family unit.

The Tribunal found that the applicant satisfied clause 187.233. It noted that the applicant provided evidence of genuine employment in Townsville, Queensland, since 2016 and that her services continued to be required. Crucially, the Tribunal had previously set aside the Department's decision regarding the nomination and substituted a decision to approve it. The evidence indicated that the nominator would still employ the applicant in the nominated position, the visa application was made within the required timeframe, and no adverse information was presented.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister. The Tribunal directed that the first applicant meets clause 187.233. The second applicant's application, being based on family unit status, will be determined by reference to the outcome of the first applicant's reconsidered application. The Tribunal also noted the birth of the applicant's child and recommended advising the Department of the child's particulars.