MARTINEZ VALIENTE (Migration)

This matter concerned an appeal by Mr Santos Martinez Valiente, and his family members, regarding a Subclass 186 (Employer Nomination Scheme) visa application under the Temporary Residence Transition stream. The primary dispute centred on the refusal of the employer's nomination by the Department of Immigration, which consequently led to the refusal of Mr Valiente's visa application. The Administrative Appeals Tribunal (AAT) was required to review the decision to refuse the nomination.

The legal issues before the Tribunal included whether the nominated position met the requirements of cl.186.223 of the Migration Regulations 1994, specifically concerning the approval of the nomination, the absence of adverse information about the nominator, the continued availability of the position, and the timeliness of the visa application relative to the nomination approval. A key element of the dispute was the existence of adverse information concerning the nominating employer, Steelcon Cava Pty Ltd, which had been barred as a sponsor for six months due to an inadvertent underpayment of wages to employees, including Mr Valiente.

The Tribunal reasoned that while adverse information existed regarding the nominator's past conduct, it was reasonable to disregard this information. This conclusion was based on evidence that the underpayment was an inadvertent miscalculation and that the employer had taken steps to rectify the matter by reimbursing the owed wages. The Tribunal was satisfied that the other criteria of cl.186.223 had been met, including the approval of the nomination by the Tribunal itself (setting aside the Department's initial refusal), the continued availability of the position, and that the visa application was made concurrently with the nomination.

Consequently, the Tribunal remitted the applications for reconsideration by the Department, with a direction that Mr Santos Martinez Valiente met the criteria for the Subclass 186 visa. The applications of his family members would be determined by reference to the outcome of Mr Valiente's reconsidered application.