Sharma (Migration)

This matter concerned an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa under the Direct Entry stream, brought by the applicant, Sharma. The dispute arose because the applicant's nominated position was initially refused by the Department of Immigration. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the requirements of cl.187.233 of Schedule 2 to the Migration Regulations 1994, specifically concerning the approval of the nominated position.

The Tribunal was tasked with assessing whether the nominated position met the criteria outlined in cl.187.233. This included verifying that the position was the subject of an approved nomination, that the nominator was the intended employer, that the nomination had not been withdrawn, that there was no adverse information concerning the nominator, that the position remained available, and that the visa application was lodged within six months of the nomination's approval. The Tribunal also considered the applications of secondary applicants who claimed to be members of the primary applicant's family unit.

The Tribunal found that the applicant met the requirements of cl.187.233. It noted that the nominated position was for a cook at The Royal Indian Cuisine, operated by Sukhmeet Enterprises Pty Ltd, the nominator. Crucially, the Tribunal had previously set aside the Department's refusal and substituted a decision approving the nomination on 8 May 2018. The Tribunal was satisfied that the nomination had not been withdrawn, the position was still available, and the visa application was made within the prescribed timeframe. As the Tribunal concluded that the primary applicant met this criterion, it remitted the visa applications for reconsideration by the Minister, with a direction that the primary applicant satisfied cl.187.233. The secondary applicants' applications were also to be reconsidered in full.