Siblag (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision by the Department of Immigration regarding a Subclass 187 Regional Sponsored Migration Scheme visa application. The primary applicant, identified as the holder of a Subclass 457 visa, had a nomination made by Dutchy’s Trim Shop Pty Ltd for the position of Vehicle Trimmer. The Department had initially refused this nomination, but the Tribunal, on review, set aside that decision and substituted an approval of the nomination. The Tribunal was then required to consider whether the nomination met the criteria under clause 187.223 of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the nominated position was approved and had not been withdrawn, whether there was any adverse information known to Immigration about the nominator or associated persons, whether the position was located in regional Australia, if the position remained available to the applicant, and if the visa application was made within six months of the nomination's approval. The Tribunal also had to consider whether the secondary applicants, identified as family members, satisfied clause 187.311, which requires them to be members of the family unit of the primary applicant who holds a Subclass 187 visa granted on the basis of satisfying primary criteria and having made a valid combined application.

The Tribunal found that the nomination had been approved and not withdrawn, and that the position was located in Geraldton, Western Australia, a designated regional area. The Tribunal was satisfied that the position remained available to the applicant, who had been working in it since March 2015, and that the visa application was made within the required six-month timeframe after the nomination's approval. Furthermore, there was no evidence of adverse information known to Immigration concerning the nominator or associated persons. Consequently, the Tribunal concluded that the primary applicant met the requirements of clause 187.223(2).

Given these findings regarding the primary applicant's nomination, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria, specifically those relating to the secondary applicants under clause 187.311. The Tribunal directed that the first named applicant met the criteria under clause 187.223(2).