Kaur (Migration)

This matter concerned an application for review of a decision not to grant a Subclass 187 (Regional Sponsored Migration Scheme) visa, specifically under the Direct Entry stream. The applicant, Ms Kaur, sought this visa for the nominated position of Retail Manager (General) with her sponsoring employer, Ishaan Company Pty Ltd. The Administrative Appeals Tribunal was required to determine whether the nominated position remained available and whether the applicant had satisfied the essential criteria for the visa.

The primary legal issue before the Tribunal was whether the nominated position for Retail Manager (General) was still available to the applicant, as required by clause 187.233 of the Migration Regulations 1994. This criterion mandates that the nominated position must be available to the applicant at the time of the visa application and that the nomination itself must have been approved and not subsequently withdrawn. The Tribunal also considered whether the applicant had provided sufficient information to satisfy this essential criterion, particularly in light of correspondence from the Department and the Tribunal.

The Tribunal reasoned that a key requirement for the Direct Entry stream of the Subclass 187 visa is that the nominated position must be available. In this instance, the sponsoring employer had advised the Department on 11 December 2015 that the nominated position was no longer available. Despite being given an opportunity to respond to this information by the Department, the applicant did not do so. Subsequently, the nomination application was refused by the delegate. The Tribunal also wrote to the applicant on 8 November 2016, inviting her to provide information regarding an approved and available nomination, but the applicant failed to respond within the prescribed period. Consequently, the Tribunal found that the applicant could not satisfy the essential criterion that the nominated position was still available.

As the applicant had not satisfied this essential criterion for the Subclass 187 visa in the Direct Entry stream, the Tribunal affirmed the decision not to grant the visa.