Velasquez Valencia (Migration)

The Administrative Appeals Tribunal considered the applications for Employer Nomination (Residence) (Class BW) Subclass 856 visas made by Mr Velasquez Valencia and his family. The applicants sought these visas based on Mr Velasquez Valencia's proposed employment as a Building Associate with the nominating employer, United Colours Painting and Decorating. The core of the dispute revolved around whether the nominated position was genuine and available, and whether the nominating employer had complied with immigration law.

The Tribunal was required to determine if the applicants met the relevant criteria for the Subclass 856 visa, specifically clause 856.221 of Schedule 2 to the Migration Regulations 1994. This clause pertains to the approval and continued availability of the nominated appointment. The delegate had refused the visas, finding that the nominator had breached immigration law and that the business's activities, as indicated by its tax return, did not demonstrate a genuine need for a Building Associate.

The Tribunal's reasoning focused on the requirements of clause 856.221. It noted that the nominated appointment must have been approved and not withdrawn, and must continue to satisfy the criteria for approval under regulation 5.19(2) and remain available to the applicant. The Tribunal heard evidence from the applicants and their representative, with the assistance of an interpreter.

Ultimately, the Tribunal decided to remit the applications for reconsideration. It directed that the first applicant be found to meet the criteria under clause 856.221, and the other applicants be found to meet the secondary criteria under clause 856.312. This outcome indicates that the Tribunal found sufficient grounds to revisit the delegate's decision, likely based on the evidence presented and its interpretation of the regulatory requirements.