Singh (Migration)

This matter concerned an appeal by Mr. Singh (the first applicant) and his spouse (the second applicant) against a decision by the Department of Immigration. The appeal related to applications for Regional Employer Nomination (Permanent) (Class RN) visas, specifically under the Subclass 187 Direct Entry stream for a Graphic Pre-press Trades Worker. The central dispute revolved around whether the nominated position remained available to Mr. Singh, given that he was the sole Director and shareholder of the nominating company, Swan Prints Pty Ltd.

The Tribunal was required to determine whether the nominated position of Graphic Pre-press Trades Worker was still available to Mr. Singh, as stipulated by clause 187.233(5) of the Migration Regulations. This clause is a key requirement for the Direct Entry stream of the Subclass 187 visa, necessitating that the nominated position be genuinely available to the applicant. The Tribunal also considered a certificate issued under s.375A of the Act, which purported to cover internal departmental information, and the applicants' right to make submissions regarding its validity and relevance.

The Tribunal found that departmental officers visited the nominator's business premises on two occasions. Following an interview with Mr. Singh, the officers concluded that he did not appear to be undertaking the tasks of a Graphic Pre-press Trades Worker as described by ANZSCO, and therefore, the position was no longer available. Despite the applicants not making submissions on the validity of the s.375A certificate, the Tribunal considered the information covered by it not relevant to the determination of the availability of the position. The Tribunal noted that the nomination was a self-sponsored situation, which was permissible under the regulations at the time of approval.

Given the findings regarding the availability of the position, the Tribunal remitted the visa applications to the Minister for reconsideration of the remaining criteria. The second applicant's application, being dependent on the first applicant's, will be determined based on the outcome of that reconsideration. The Tribunal directed that the first applicant meets criterion cl.187.233(5) for the Subclass 187 visa.