Dhaliwal (Migration)

The Administrative Appeals Tribunal considered an application by Dashmesh Pty Ltd ATF Gurmantar Family Trust (the nominator) for approval of a nomination for a Retail Manager position, and the subsequent visa application by the prospective employee. The primary dispute concerned whether the nominator satisfied the requirements of clause 187.233 of the Migration Regulations 1994, specifically regarding the availability of the nominated position and the approval of the nomination. The Tribunal also considered the visa applications of secondary applicants who were family members of the primary applicant.

The legal issues before the Tribunal were whether the nominated position was the subject of an approved nomination in regional Australia, whether the nominator was the prospective employer, whether the nomination had been approved and not withdrawn, whether there was adverse information concerning the nominator or associated persons, and crucially, whether the position remained available to the applicant and if the visa application was lodged within six months of the nomination's approval. The Tribunal was also required to determine if the secondary applicants met the criteria for their visa applications, which depended on the primary applicant satisfying the criteria for a Subclass 187 visa.

The Tribunal reasoned that the evidence presented, including the employment contract and the timing of the visa application, satisfied the requirements of clause 187.233. It found that the nominator was the prospective employer, the nomination had been approved and not withdrawn, and there was no adverse information known to Immigration. The Tribunal concluded that the position was still available to the applicant and that the visa application was made within the prescribed six-month period. Consequently, the Tribunal set aside the Department's decision to refuse the nomination and substituted a decision to approve it.

The Tribunal remitted the primary visa applicant's application to the Minister for reconsideration of the remaining visa criteria, having found that clause 187.233 was met. The Tribunal also remitted the secondary applicants' visa applications for reconsideration by the Minister.