BAVISHI (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream. The applicants sought review of a decision to refuse their visa application, which hinged on the approval of a nominated position.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the position be the subject of an approved nomination, that the nominator be the prospective employer, and that the position remains available to the applicant.

The Tribunal reasoned that while the employer's nomination application had initially been refused by a delegate, the Tribunal itself had subsequently set aside that refusal and substituted a decision approving the appointment for the position of Accountant (General). The Tribunal was satisfied, based on the evidence before it, that this approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. Consequently, the Tribunal found that the applicants 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 met the criteria specified in clause 187.233.