Malik (Migration)

This matter concerned a review by the Administrative Appeals Tribunal (AAT) of a decision relating to a Subclass 187 Regional Sponsored Migration Scheme visa application. The applicant was seeking a visa, and their employer, Ramahyuck District Aboriginal Corporation, had lodged a nomination for a position. The core dispute revolved around whether the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) had been met.

The Tribunal was required to determine whether the nominated position met the criteria for a Direct Entry nomination under the relevant regulations, specifically considering whether the employer had made the nomination, if the nomination had been approved and not withdrawn, if there was any adverse information concerning the nominator or associated persons, if the position remained available, and if the visa application was lodged within six months of the nomination's approval. The Tribunal also had to consider the visa applications of the second and third applicants, who were family members of the primary applicant.

The Tribunal found that the employer, Ramahyuck District Aboriginal Corporation, had indeed made the nomination for the applicant as a Child Care Worker. Crucially, the Tribunal noted that a previous refusal of this nomination had been set aside by the AAT on 13 October 2017, and the nomination was substituted with a decision to approve it. Based on this, and evidence presented, the Tribunal was satisfied that the employer continued to employ the applicant, the nomination was approved and not withdrawn, there was no adverse information or any such information was reasonable to disregard, the position remained available, and the visa application was made within the requisite six-month period after the nomination approval. Consequently, the Tribunal concluded that clause 187.233 was met.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the primary applicant met the criteria under clause 187.233. The outcome of the family members' visa applications was made dependent on the outcome of the primary applicant's application upon remittal.