WALKER (Migration)

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, by Mr Ashley Jo Walker, with Ms Samantha Charlene June Rae applying as a member of his family unit. The dispute arose after the Department of Immigration refused Mr Walker's visa application, which was consequential to the refusal of an employer nomination by Nigel John Graham ATF The NT Trust for the position of Bricklayer (ANZSCO - 331111). The Administrative Appeals Tribunal (AAT) was required to review the decision not to approve the nomination.

The primary legal issue before the Tribunal was whether Mr Walker met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause, as applicable, stipulated several conditions for the nominated position, including that it be located in regional Australia, be the subject of an approved nomination that had not been withdrawn, and that the nominating employer be the entity that would employ the applicant. Further requirements included the absence of adverse information known to the Department about the nominator or associated persons, the continued availability of the position, and that the visa application be made within six months of the nomination's approval.

The Tribunal reasoned that the employer nomination, initially refused by the Department, had been approved by the AAT on 12 March 2019. The Tribunal was satisfied, based on the evidence before it, that the nominating employer was the entity that would employ Mr Walker, that the nomination had been approved and not withdrawn, and that there was no adverse information known to the Department. The nominator had also confirmed the position remained available, and the visa application was made concurrently with the nomination, thus satisfying the time limit. Consequently, the Tribunal found that the requirements of clause 187.233 were met.

The Tribunal remitted Mr Walker's application for reconsideration by the Department, with a direction that he met the criteria under clause 187.233. Ms Rae's application would be determined by reference to the outcome of Mr Walker's application.