Partington (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding the approval of a nomination for a Subclass 187 Regional Sponsored Migration Scheme visa. The applicant, Mr Partington, sought to have the nomination approved, which had previously been refused by the Department. The Tribunal was required to determine whether the nomination satisfied the requirements of cl.187.233 of the Migration Regulations 1994.

The primary legal issue was whether the nominated position of Landscape Gardener met the criteria outlined in cl.187.233, specifically concerning the employer's nomination, the approval of that nomination, the absence or disregard of adverse information, and the continued availability of the position. The Tribunal also considered whether the visa application was made within the prescribed timeframe following the nomination approval.

The Tribunal found that the nominated position was the same as that subject to the relevant nomination application and visa declaration, thus satisfying cl.187.233(1). It was also satisfied that the employer was the nominator and that the nomination had been approved and not withdrawn, meeting cl.187.233(2), (3), (4), and (5). Crucially, the Tribunal reviewed adverse information and determined it was reasonable to disregard it, thereby meeting cl.187.233(4A). The Tribunal concluded that the applicant met the criteria under cl.187.233.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first applicant met the criteria under cl.187.233, and the second applicant met the criteria under cl.187.311.