Bala (Migration)

This matter concerned a Subclass 187 (Regional Sponsored Migration Scheme) visa application under the Direct Entry stream. The applicant sought review of a decision by the Department of Immigration and Border Protection, which had refused the employer's nomination. The Administrative Appeals Tribunal (AAT) was required to determine whether the employer's nomination had been approved.

The central legal issue before the Tribunal was whether the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994 were met. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination, and that the nomination must not have been subsequently withdrawn. The Tribunal also had to consider whether the approved position was the same as that declared in the visa application and whether the nominator was the prospective employer.

The Tribunal reasoned that while the employer's nomination had initially been refused by a delegate of the Minister, the Tribunal itself had subsequently set aside that refusal and substituted a decision approving the appointment for the nominated position. The Tribunal was satisfied, based on the evidence before it, that the approved position was indeed the same as that which was the subject of the relevant nomination application and the visa application declaration. Consequently, the Tribunal found that the applicant met the requirements of clause 187.233.

The Tribunal therefore remitted the visa applications to the Minister for reconsideration, with a direction that the first applicant satisfied the criteria under clause 187.233 of Schedule 2 to the Regulations.