Pena Arias (Migration)

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, for the nominated position of Disability Support Worker. The applicant had previously been employed under a Subclass 457 visa, but her new employer, Rocky Bay Inc, withdrew its sponsorship nomination. The applicant subsequently sought Ministerial Intervention. The Tribunal was required to determine whether the decision to refuse the visa should be affirmed.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 187 visa, specifically concerning the nominated position. This involved assessing whether the nomination had been approved and not subsequently withdrawn, and whether the position remained available to the applicant. Additionally, the Tribunal considered the applicant's request for Ministerial Intervention, which required an assessment of whether the circumstances warranted referral to the Minister based on the guidelines concerning serious, ongoing, and irreversible harm and continuing hardship.

The Tribunal affirmed the delegate's decision, finding that the nomination application lodged by Rocky Bay Inc was withdrawn on 29 November 2017. Consequently, the criterion that the nomination must have been approved and not subsequently withdrawn was not met. Regarding Ministerial Intervention, the Tribunal concluded that, based on the evidence presented, it was not satisfied that the applicant's circumstances would result in serious, ongoing, and irreversible harm if not recognised. Therefore, the Tribunal decided not to refer the matter to the Minister.