Sidhu (Migration)

This matter concerned a Regional Employer Nomination (Permanent) visa (Subclass 187) under the Direct Entry stream. The applicant sought review of a decision concerning the approval of a nominated position. The core dispute revolved around whether the nominated position met the requirements of clause 187.233 of the Migration Regulations 1994, particularly in light of a prior refusal and subsequent approval by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the nominated position, as declared in the visa application, was the subject of an approved nomination as required by clause 187.233. This involved determining if the position approved by the Tribunal in a separate nomination application was the same as that declared in the visa application, and if the nominator was the same person who would employ the applicant. The Tribunal also had to consider whether the nomination had been approved and not subsequently withdrawn, and if there was any adverse information concerning the nominator.

The Tribunal reasoned that for a Direct Entry stream application under Subclass 187, the nominated position must be the subject of an approved nomination under the relevant regulations. It noted that the employer's nomination application had initially been refused by a delegate but was subsequently set aside by the Tribunal, which then substituted a decision approving the appointment for the position of Cook. The Tribunal was satisfied, based on the evidence, that this approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. Consequently, the Tribunal found that the applicant met the requirements of clause 187.233.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the applicant met the criteria specified in clause 187.233.