Kaur (Migration)

This matter concerned a review application lodged by Khalsa Orchards Pty Ltd & J Singh Income Trust (trading as Superfresh Australia) concerning the refusal of their nomination of the applicant for a Subclass 187 (Regional Sponsored Migration Scheme) visa for the position of Gardener. The Administrative Appeals Tribunal (AAT) was required to determine whether the nominated position met the relevant criteria under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated position satisfied the requirements of cl.187.233 of Schedule 2 to the Regulations. This involved assessing whether the employer had made the nomination, whether the nomination had been approved and not withdrawn, whether there was any adverse information concerning the nominator or associated persons, whether the position remained available to the applicant, and whether the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the employer had indeed lodged the nomination, which had subsequently been approved by the Tribunal on 23 November 2017, and had not been withdrawn. It was also satisfied that no adverse information was known to Immigration, or that any such information was reasonable to disregard. Furthermore, the Tribunal accepted that the position remained available to the applicant and that the visa application was made within the prescribed timeframe following the nomination approval. Consequently, the Tribunal concluded that cl.187.233 was met.

The Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the first applicant met the criteria under cl.187.233. The visa applications of the second and third applicants, who applied as members of the applicant's family unit, were made dependent on the outcome of the primary applicant's reconsidered application.