Le (Migration)

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa under the Direct Entry stream. The applicant's nominating employer, the Trustee for Balarston Hall Discretionary Trust, had applied for approval of a Hotel or Motel Manager position. The Department initially refused to approve the nomination, but this decision was subsequently reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of cl.187.233 of the Migration Regulations 1994. This clause mandates that for the Direct Entry stream, the nominated position must have been approved under the relevant regulations, the employer who made the nomination must be the prospective employer, the nomination must be approved and not withdrawn, there must be no adverse information known to the Department about the nominator or associated persons (or such information must be reasonably disregarded), the position must remain available to the applicant, and the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the employer's nomination for the Hotel or Motel Manager position had been approved by the Tribunal on 18 April 2018, setting aside the Department's refusal. As the nomination was approved, the Tribunal concluded that the first named applicant met the criterion under cl.187.233(3). Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first named applicant satisfies cl.187.233(3), and that the Minister should consider the remaining visa criteria, including those for any secondary applicants.