Chandel (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision concerning a Subclass 187 (Regional Sponsored Migration Scheme) visa under the Direct Entry stream. The applicant sought to have a nomination approval for the position of Cook reconsidered.

The primary legal issue before the Tribunal was whether the nomination for the position of Cook had been approved, as required by clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several criteria that must be met for a nomination to be considered valid, including that the nominator is the prospective employer, the nomination has been approved and not withdrawn, there is no adverse information known to the Department, the position remains available, and the visa application was made within six months of the nomination approval.

The Tribunal reasoned that for applicants in the Direct Entry stream, the position must be the subject of an approved nomination application. It noted that the sponsoring employer had lodged a nomination on 30 June 2017, which was initially refused on 26 September 2017. However, on 14 June 2018, the Tribunal set aside the Department's refusal and substituted a decision approving the appointment for the position of Cook. 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 visa applicant met the requirements of clause 187.233.

The Tribunal therefore remitted the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration by the Minister, with the direction that the first applicant meets the criteria specified in clause 187.233.