KUMAR (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 187 (Regional Sponsored Migration Scheme) visa application, Direct Entry stream, for an ICT Trainer. The applicant, a citizen of Pakistan, and his spouse, the second applicant, sought review of a decision to refuse their visa applications. The appeal was heard in conjunction with a review of a refused nomination.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination for the position of ICT Trainer in regional Australia, as required by clause 187.233 of the Migration Regulations. This clause stipulated several conditions, including that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration concerning the nominator or associated persons, the position must remain available, and the visa application must have been lodged within six months of the nomination's approval. The Tribunal also considered the secondary criteria under clause 187.311 for the spouse.

The Tribunal found that the nominator was indeed the prospective employer and had made the nomination, which had not been withdrawn. Furthermore, the Tribunal was satisfied that there was no adverse information concerning the nominator or nominee, that the position remained available, and that the visa application was lodged within the prescribed timeframe following the nomination's approval. Crucially, on 21 November 2019, the Tribunal set aside the nomination refusal and substituted a decision approving the nomination.

Consequently, the Tribunal remitted the visa applications to the Minister for reconsideration. The Tribunal directed that the first applicant met the criteria under clause 187.233, and the second applicant met the criteria under clause 187.311, for the Subclass 187 visa.