PACE (Migration)

This matter concerned an application for a Subclass 187 Regional Sponsored Migration Scheme visa, specifically under the Temporary Residence Transition stream. The primary dispute revolved around whether the nomination for the position held by the first applicant had been approved, as required by the relevant migration regulations. The decision was made by Phoebe Dunn, a Member of the Tribunal.

The legal issues before the Tribunal were whether the primary applicant met the criteria for the visa, particularly clause 187.223 of Schedule 2 to the Regulations, which pertains to the approval of a nomination. Additionally, the Tribunal had to consider whether the secondary applicants satisfied clause 186.311, which requires them to be members of the family unit of a primary applicant who holds a Subclass 187 visa granted on the basis of satisfying primary criteria and having made a combined application.

The Tribunal reasoned that while the Department had initially refused the nomination, the Tribunal itself had subsequently set aside that decision and substituted an approval of the nomination. This meant that the primary applicant met the requirements of clause 187.223(2). However, the Tribunal found it could not make a direction that the secondary applicants met clause 186.311 because, at the time of the decision, the primary applicant did not yet hold the Subclass 187 visa. Consequently, the Tribunal remitted the applications for reconsideration, directing that the first named applicant met criterion 187.223(2), and referred the cases of the secondary applicants to the Department for fresh consideration.