Sandeep Kumar (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for the applicant, Sandeep Kumar, who was nominated for the position of cook. The dispute arose when the Department refused to approve the nomination, leading the nominating employer to seek review by the Tribunal. The Tribunal, constituted by De-Anne Kelly, considered whether the applicant satisfied the criteria under clause 187.233 of the relevant regulations.

The primary legal issue before the Tribunal was to determine whether the applicant met the requirements of clause 187.233(3), which mandates that the Minister has approved the nomination. This clause, in conjunction with other subclauses of 187.233, requires that the nominated position be located in regional Australia, identified in the nomination application, that the employer making the nomination is the one who will employ the applicant, that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nominating employer, Mr. Pancholi, owner of 4 Square Bakery & Supermarkets Pty Ltd, had made the nomination for the cook position and signed an employment contract with the applicant. The Tribunal noted that the Department had initially refused to approve the nomination, but this decision was set aside by the Tribunal, which then substituted a decision to approve the nomination. It was established that the nomination had been approved and not withdrawn, and no adverse information concerning Mr. Pancholi was presented. The employment contract dated 7 March 2018 confirmed the position's availability, and the visa application, lodged on 8 March 2018, was within the six-month timeframe after the nomination's approval.

Consequently, the Tribunal concluded that the applicant met the criteria under clause 187.233. The Tribunal remitted the visa application to the Minister for reconsideration, directing that the applicant satisfied clause 187.233 of Schedule 2 to the Regulations.