SMITH (Migration)

This matter concerned an appeal by an applicant for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, for the occupation of Chef. The primary dispute revolved around whether the applicant's nominated position was the subject of an approved nomination, as required by clause 187.233 of the Migration Regulations. The decision was made by Joanne Bakas, a Member of the Tribunal.

The legal issue before the Tribunal was whether the applicant met the criteria under clause 187.233 of Schedule 2 to the Migration Regulations, specifically concerning the approval of the nomination for the Chef position. This clause outlines several requirements, including that the position must be nominated in the Direct Entry stream, located in regional Australia, and that the nomination must have been approved and not subsequently withdrawn. Furthermore, it requires the nominator to be the prospective employer, the position to remain available, and the visa application to be lodged within six months of the nomination's approval.

The Tribunal found that the Department had initially refused the nomination, but on review, the Tribunal had set aside that decision and substituted an approval of the nomination on 23 November 2022. As the nomination had now been approved, the Tribunal concluded that the requirement under clause 187.233(3) was met. Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, directing that the primary applicant satisfied clause 187.233(3) and that the secondary applicant's application should also be reconsidered in light of the primary applicant's outcome.