Santos (Migration)

The Administrative Appeals Tribunal considered a decision concerning a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, for a Child Care Centre Room Leader. The applicant sought review of the Department's refusal to approve the nomination for the position.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of the Migration Regulations, specifically concerning the approval and validity of the employer's nomination. This clause requires, among other things, that the nominated position be located in regional Australia, that the nominator be the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that while a director of the employing entity signed the nomination and employment contract, demonstrating an intention to employ the applicant, the initial nomination was refused by the Department. However, the Tribunal set aside the Department's decision and substituted its own decision to approve the nomination. The Tribunal was satisfied that the nomination had been approved and not withdrawn, that no adverse information was before it, that the position remained available as evidenced by a recent employment contract, and that the visa application was lodged within the prescribed six-month timeframe after the nomination's approval.

Consequently, the Tribunal remitted the primary and secondary applicants' visa applications to the Minister for reconsideration, with a direction that the first named applicant met the specified criteria for the Subclass 187 visa.