Shaukat (Migration)

This matter concerned an application for a Subclass 187 Regional Sponsored Migration Scheme visa, Direct Entry stream, for the position of Retail Manager. The applicant's nominating employer, Freo Hand Car Wash & Detailing Pty Ltd, had initially applied for approval of the nomination, which was refused by the Department. The employer then sought review of this decision before the Tribunal. The Tribunal, constituted by Member Mary Sheargold, was required to determine whether the nomination for the position met the relevant criteria.

The primary legal issue before the Tribunal was whether the nomination for the Retail Manager position, made by Freo Hand Car Wash & Detailing Pty Ltd in respect of the first named applicant, had been approved and satisfied the requirements of clause 187.233 of Schedule 2 to the Migration Regulations. This clause, as applicable, stipulated several conditions, including that the position be located in regional Australia, that the nominating person be the prospective employer, that the nomination be approved and not withdrawn, that there be no adverse information known to Immigration about the nominator or associated persons (or that such information be disregarded), that the position remain available, and that the visa application be lodged within six months of the nomination's approval.

The Tribunal reasoned that on 5 December 2019, it had set aside the Department's decision to refuse the nomination and substituted a decision to approve it under subregulation 5.19(4). Consequently, the Tribunal found that the first named applicant met the requirement of clause 187.233(2) as the nomination had been approved. Given this finding, the Tribunal determined that the appropriate course was to remit the visa applications for reconsideration by the Minister, with a direction that the first named applicant had met the specified criteria for the visa.