DESAI (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 187 Regional Employer Nomination (Permanent) visa application. The applicant sought review of a decision that had refused to approve the employer's nomination for the position of Café or Restaurant Manager. The core dispute revolved around whether the nominated position met the requirements of the relevant migration regulations, specifically clause 187.233 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine whether the nominated position was the subject of an approved nomination as required by the regulations, and whether the applicant met the criteria outlined in clause 187.233. This involved assessing whether the employer who made the nomination was the prospective employer, whether the nomination had been approved and not withdrawn, whether there was any adverse information concerning the nominator, and whether the position remained available to the applicant. The Tribunal also had to consider the timing of the visa application in relation to the nomination approval.

The Tribunal reasoned that while the employer's initial nomination application was refused on 14 November 2019, it had subsequently set aside that refusal on 18 July 2023 and substituted a decision approving the nomination for the Café or Restaurant Manager position. Based on the evidence presented, the Tribunal was satisfied that the approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. It also found that the prospective employer was the nominator and that the nomination had been approved and not withdrawn. Consequently, the Tribunal concluded that the applicant met the requirements of clause 187.233.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first applicant met the criteria specified in clause 187.233 for a Subclass 187 visa.