Abeysundara Dissanayake (Migration)

This matter concerned an appeal by Abeysundara Dissanayake against a decision by the Migration Review Tribunal regarding a Subclass 187 (Regional Sponsored Migration Scheme) visa under the direct entry stream. The core dispute revolved around the refusal of the associated nomination application for a retail manager position at a supermarket and petrol station. The Tribunal was tasked with determining whether the applicants met the criteria for the visa, specifically concerning the approved nomination.

The legal issues before the Tribunal included whether the nominated position was genuine and whether the applicant possessed the necessary qualifications and experience for the role. The delegate's decision highlighted concerns that the nominator, a sole trader, had not provided sufficient evidence of a genuine need to employ the applicant as a paid employee under their direct control. Specific doubts were raised about the existence of a Board of Directors, the plausibility of a sole trader relinquishing control over key business functions, and whether the nominated position's duties aligned with those of a retail manager, given the applicant's salary and the potential for them to perform other tasks such as supervising motel facilities. Furthermore, discrepancies were noted regarding the position description and the business entity's affiliation with a particular petrol station brand.

The Tribunal concluded that the matter required reconsideration and remitted the visa application to the Minister. The reasoning focused on the need to revisit the criteria for an approved nomination, as stipulated in clause 187.233 of Schedule 2 to the Regulations. This included ensuring the nominated position was genuine, located in regional Australia, and that the nominator was the prospective employer. The Tribunal also directed that the applicants meet the criteria under clause 187.223 of Schedule 2 to the Regulations.