Ma (Migration)

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa under the Direct Entry stream. The applicant, identified as "Ma," sought review of a decision concerning their visa application. The dispute centred on whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, which pertains to the nomination of a position. The case was heard by Alison Mercer, a Member of the Tribunal.

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 the subject of an approved nomination, that the employer who made the nomination is the one who will employ the applicant, that the nomination has not been withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, that the position remains available, and that the visa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 lodged within six months of the nomination's approval. A secondary issue arose concerning the eligibility of secondary applicants, specifically whether they were within the migration zone as required by section 347(3) of the Migration Act 1958.

The Tribunal reasoned that at the time of the delegate's initial decision, the nomination had been refused. However, the employer, Austong Pty Ltd, successfully sought review of this refusal, and the Tribunal set aside the refusal, substituting a decision to approve the nomination on 9 June 2017. The Tribunal was satisfied that the applicant continued to be employed in the nominated position. Based on this, the Tribunal found that all sub-clauses of clause 187.233 were met. Regarding the secondary applicants, the Tribunal found that the third applicant was not in the migration zone at the relevant times, thus divesting the Tribunal of jurisdiction over their application.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister. The Tribunal directed that the first applicant, Ma, meets clause 187.233. The applications of the second and fourth named applicants, who were in the migration zone and applied as family members, were to be determined by reference to the outcome of the first applicant's reconsidered application. The Tribunal explicitly stated it had no jurisdiction concerning the third named applicant.