SIngh (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 187 (Regional Sponsored Migration Scheme) visa application under the Direct Entry stream. The applicant sought review of a decision that had refused to approve the nominated position of Restaurant Manager. The Tribunal was tasked with determining whether the nomination for the position had been approved and if the applicant met the relevant visa criteria.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several conditions for the nomination, including that the position must have been approved, the nominator must be the prospective employer, there must be no adverse information, the position must remain available, and the visa application must have been lodged within six months of the nomination's approval. The Tribunal also had to consider the evidence presented by the applicant, including written submissions and supporting documentation, in conjunction with the evidence previously provided to the Department.

The Tribunal reasoned that for the Direct Entry stream, specific regulations governed the approval of nominated positions. It noted that the employer had lodged a nomination on 22 April 2016, which was subsequently refused by the Department on 9 October 2017. However, on 31 May 2018, the Tribunal set aside the Department's decision and substituted its own decision, approving the appointment for the Restaurant Manager position. Based on this approval and the evidence presented, the Tribunal found that the nominated position was the same as that in the visa application declaration, satisfying clause 187.233(1). Furthermore, the Tribunal was satisfied that the nominator was the prospective employer and that, in light of the Tribunal's own approval of the appointment, the applicant now met the requirements of clause 187.233.

Consequently, the Tribunal found that the visa applicant satisfied the requirements of clause 187.233. The Tribunal therefore remitted the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration by the Minister, with the direction that the first named applicant meets the criteria specified in clause 187.233.