Rayner (Migration)

This matter concerned an appeal by an applicant for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, and a second applicant who was a member of the applicant's family unit. The primary dispute revolved around the refusal of the nomination application for the position the applicant was to fill, which was a prerequisite for the visa. The case was heard by the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for the Subclass 187 visa, specifically focusing on clause 187.233, which pertains to the nomination of a position. Key issues included whether the nomination had been approved, whether the nominator was the prospective employer, whether the nomination had been withdrawn, and crucially, whether there was any adverse information known to the Department about the nominator or associated persons, or if it was reasonable to disregard such information. The Tribunal also had to consider if the position remained available and if the visa application was lodged within the prescribed timeframe.

The Tribunal found that the nominator, TRAFFIC WERX NT Pty Ltd, was indeed the prospective employer and that the nomination had not been withdrawn. Importantly, the Tribunal determined that the nomination application had been approved on review on 22 April 2022. Regarding adverse information, while acknowledging a history of past sanctions and monitoring of the nominator, the Tribunal found no current concerns and, for reasons detailed in a separate decision concerning the nominator, concluded it was reasonable to disregard the past information. The Tribunal also found that the position was still available, the applicant was currently employed in the role, and the visa application was made within the six-month timeframe. Consequently, the Tribunal found that clause 187.233 was met for the primary applicant.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister. The Tribunal directed that the primary applicant met criteria 187.233(3) and 187.233, and the second applicant met criterion 187.311.