Kaur (Migration)

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa under the Direct Entry stream, specifically for a Cook (ANZSCO 351411) position. The applicant's visa application had been refused because the associated nomination application was initially refused, meaning the applicant did not meet clause 187.233(3) of the relevant regulations, which requires an approved nomination. The nominator sought review of the nomination refusal. The Administrative Appeals Tribunal, constituted by Member Phoebe Dunn, considered the appeal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Subclass 187 visa, specifically concerning the approval of the nomination. The Tribunal was required to determine if the nomination, which had been refused by the Department, had subsequently been approved and if this approval satisfied the requirements of clause 187.233(3).

The Tribunal reasoned that clause 187.233(3) mandates that the Minister has approved the nomination. It noted that the nominator had applied for a review of the Department's refusal of the nomination. On 10 November 2020, the Tribunal set aside the Department's decision and substituted a decision approving the nomination. Consequently, the Tribunal found that the applicant now met the requirements of clause 187.233(3).

Given this finding, 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 applicant be considered to meet clause 187.233(3) of Schedule 2 to the Regulations.