Sung (Migration)

The Administrative Appeals Tribunal considered a dispute concerning a nomination approval for a Subclass 187 (Regional Sponsored Migration Scheme) visa under the Direct Entry stream. The applicant sought review of a decision that refused to approve the employer's nomination.

The primary legal issue before the Tribunal was whether the employer's nomination for the applicant's visa had been approved, as required by clause 187.233 of the Migration Regulations. This involved determining if the nominated position met specific criteria, including that it was the subject of an approved nomination application, that the nominator was the prospective employer, and that the nomination had not been withdrawn and no adverse information was known to the Department.

The Tribunal reasoned that for Direct Entry stream applicants, clause 187.233 mandates that the nominated position must have been approved under the relevant regulations. The Tribunal found that the employer had lodged a nomination application on 27 May 2016, which was initially refused on 14 September 2017. However, on 16 July 2018, the Tribunal set aside the Department's refusal and substituted a decision approving the appointment for the position of Accountant (General). The Tribunal was satisfied that this approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration, thus meeting the requirements of clause 187.233(1). Furthermore, the Tribunal found that the nominator was the prospective employer and that the visa applicant now met the requirements of clause 187.233(3) in light of the Tribunal's approval of the appointment.

Consequently, the Tribunal found that the visa applicant satisfied the requirements of clause 187.233. The Tribunal therefore remitted the visa application to the Minister for reconsideration of the remaining criteria for the visa, with the direction that the first named applicant meets the specified criteria under clause 187.233.