Padmani (Migration)

This matter concerned an application for a Subclass 187 Regional Sponsored Migration Scheme (RSMS) visa, Direct Entry stream, for the position of Store Manager. The primary applicant sought review of a decision concerning the approval of the nomination for this position, while a secondary applicant, the applicants' daughter born after the delegate's decision, was also involved. The case was heard by Terrence Baxter, a Member of the Tribunal.

The central legal issues before the Tribunal were whether the nomination for the Store Manager position met the requirements of clause 187.233 of the Regulations, and whether the Tribunal had jurisdiction to consider the application of the secondary applicant, the applicants' daughter. Specifically, the Tribunal had to determine if the nomination had been approved and if the secondary applicant, who was not in the migration zone at the relevant times, could be included in the review proceedings.

The Tribunal reasoned that the nomination for the Store Manager position had indeed been approved, as the Tribunal had previously set aside the Department's refusal and substituted a decision to approve the nomination. This satisfied clause 187.233(3) of the Regulations. However, regarding the secondary applicant, the Tribunal found it lacked jurisdiction. Section 347(3A) of the Migration Act 1958 (Cth) limits review applications for certain decisions to non-citizens physically present in the migration zone at the time of the decision and when the review application is made. As the daughter was born after the delegate's decision and was not in the migration zone, the Tribunal could not consider her inclusion.

Consequently, the Tribunal remitted the visa application for reconsideration, directing that the first named applicant met criterion cl 187.233(3). The Tribunal explicitly stated it did not have jurisdiction in the matter of the second named applicant.