BHANDARI (Migration)

This matter concerned an appeal by a visa applicant against the refusal of a Subclass 187 (Regional Sponsored Migration Scheme) visa. The applicant's employer, Santoso and Chen Pty Ltd, had initially applied for approval of a nomination for the position of Retail Manager (General) on 1 August 2015. This nomination was refused by the Department on 22 February 2016, leading to the refusal of the applicant's visa application on 3 March 2016. Subsequently, on 25 January 2017, the Administrative Appeals Tribunal (AAT) set aside the Department's decision and substituted its own decision, approving the nomination.

The primary legal issue before the Tribunal was whether the visa applicant met the requirements of clause 187.233 of the Migration Regulations 1994, particularly in light of the AAT's subsequent approval of the nomination. This clause outlines several criteria for a Subclass 187 visa, including that the position must be the subject of an approved nomination, the nominator must be the intended employer, the nomination must not have been withdrawn, there must be no adverse information known to the Department, the position must still be available, and the visa application must have been made no more than six months after the nomination was approved.

The Tribunal reasoned that by approving the nomination on 25 January 2017, it had satisfied the requirement that the position be the subject of an approved nomination. It found that the approved position was the same as that in the visa application declaration and that the employer who made the nomination was the intended employer. The Tribunal was also satisfied that the relevant appointment had not been withdrawn and remained available to the applicant. Crucially, the visa application was made on 11 August 2015, which was within six months of the nomination's approval on 25 January 2017, thus satisfying the final criterion of clause 187.233.

Given these findings, the Tribunal concluded that the visa applicant met the requirements of clause 187.233. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant had satisfied the specified criteria.