singh (Migration)

This matter concerned an appeal by Mr Gaurang Singh against a decision to refuse his application for a Subclass 186 (Employer Nomination Scheme) visa. The dispute centred on whether Mr Singh had been, and intended to be, employed in the nominated occupation of Records Manager (ANZSCO 224214). The Administrative Appeals Tribunal (AAT) was required to determine if Mr Singh met the requirements of clause 186.212 of Schedule 2 to the Migration Regulations 1994.

The core legal issue before the Tribunal was whether the nominated position would provide Mr Singh with the employment referred to in the nomination, and whether the occupation specified in the visa application precisely matched the approved nomination. This required an assessment of the evidence regarding Mr Singh's actual duties and his intentions for future employment. The Department's policy stipulated that the position must align with the nomination, and the ANZSCO occupation must match exactly, unless there was contrary information.

The Tribunal found that Mr Singh had not been working in the nominated occupation of Records Manager for the entire period he held a Subclass 457 visa, nor did he intend to work entirely in that role in the future. This conclusion was based on the evidence gathered during a site visit, where the General Manager of the sponsoring business initially stated that Mr Singh's duties were split between teaching and records management. While a later statutory declaration from the General Manager asserted Mr Singh was employed full-time as a Records Manager, the Tribunal found the initial statement to be more credible due to the lack of explanation for the inconsistency. Similarly, statements made by the Academic Manager during the site visit, indicating Mr Singh was employed as a teacher, were found to be more credible than his subsequent statutory declaration.

Consequently, the Tribunal determined that Mr Singh did not satisfy clause 186.212. However, rather than affirming the refusal, the Tribunal remitted the visa applications to the Minister for reconsideration, with a direction that Mr Singh met the criteria under clause 186.212.