Sharma (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 187 Regional Sponsored Migration Scheme visa in the direct entry stream, made by Mr. Sharma. The applicant was nominated by Mitha Pty Ltd for the occupation of Café or Restaurant Manager. The core dispute concerned whether the applicant met the visa criteria, specifically regarding an approved nomination for the position.

The Tribunal was required to determine whether the applicant's Subclass 187 visa application satisfied the criterion that the position to which the application relates must be the subject of an approved nomination. This involved considering the effect of the delegate's refusal to approve the nominated position and whether any subsequent actions by the nominator or applicant could rectify this deficiency.

The Tribunal reasoned that Clause 187.233 of the Migration Regulations requires the position to be the subject of an application for approval of a nomination in the direct entry stream, located in regional Australia. It was noted that the nomination application lodged by the prospective employer was refused by a delegate, and no review of this decision was sought by the nominator. The Tribunal held that this requirement could not be satisfied by a later nomination or a new application by the same employer. As the original nomination was refused and no subsequent approved nomination existed, the applicant had failed to meet a mandatory criterion for the visa.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not satisfied the requirements for a Subclass 187 visa in the direct entry stream.