Gunaydin (Migration)

This matter concerned an application for a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa, Subclass 494, in the Employer Sponsored stream. The applicant sought to work as a Retail Manager (General) for a sponsor in regional South East Queensland. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria under cl 494.213 of Schedule 2 to the Regulations, specifically concerning an approved nomination and the genuineness of both the applicant's intention to perform the nominated occupation and the position itself.

The Tribunal considered the requirements of cl 494.213, which mandates that the nomination identified in the application must have been approved under section 140GB of the Act, the nominator must have been an approved work sponsor at the time of approval, and the approval must not have ceased. Furthermore, it requires that the applicant's intention to perform the nominated occupation be genuine, and that the associated position be genuine. The Tribunal noted that these criteria must be satisfied at the time a decision is made on the visa application.

Having reviewed the available information and heard oral evidence, the Tribunal found that the nomination application was made by the sponsor, who was an approved work sponsor at the time of the Tribunal's decision and when the nomination was approved. The Tribunal also found, having regard to relevant case law, that the applicant's intention to perform the nominated occupation was genuine, and that the position associated with the nominated occupation was also genuine. Consequently, the Tribunal concluded that cl 494.213 of Schedule 2 to the Regulations was met. The Tribunal remitted the application for reconsideration with a direction that the applicant meets this criterion.