Bhullar (Migration)

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa, specifically under the direct entry stream. The primary applicant, along with two other applicants identified as members of their family unit, sought the grant of this visa. The dispute arose from the refusal of the nomination application for the position intended for the primary applicant, which had subsequently been set aside on review.

The central legal issue before the Tribunal was whether the primary applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines the criteria for the nomination of a position in the direct entry stream, including requirements that the position be located in regional Australia, that the employer who made the nomination is the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that it had previously set aside a delegate's decision to refuse the nomination application and substituted a decision approving it. The Tribunal was satisfied that this approved nomination identified the primary applicant for the nominated position of Café or Restaurant Manager. Furthermore, the Tribunal found that all other conditions under clause 187.233 were met, including that the employer was the nominator, the nomination was approved and not withdrawn, no adverse information was known or was reasonable to disregard, the position remained available, and the visa application was lodged within the prescribed timeframe. Consequently, the Tribunal concluded that the primary applicant met the requirements of clause 187.233 and that the other applicants, as family members, also met the criteria for the visa.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa applications to the Minister for reconsideration of the remaining criteria for the grant of the visas. The Tribunal directed that the first named applicant meets the criteria under clause 187.233.