Tan (Migration)

This matter concerned an appeal by a visa applicant against a decision regarding a Regional Employer Nomination (Permanent) visa (Subclass 187), Direct Entry stream. The core dispute revolved around whether the applicant's nominated position had been approved, a prerequisite for the visa. The Administrative Appeals Tribunal (AAT) was tasked with determining the validity of the nomination.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause mandates, among other things, that the position to which the visa application relates must be the subject of an approved nomination, that the nominator must be the prospective employer, and that the nomination must not have been withdrawn. The Tribunal also had to consider whether the position remained available to the applicant and if the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that while the employer's initial nomination application was refused by a delegate on 31 January 2017, the Tribunal itself had subsequently set aside that refusal on 12 April 2018 and substituted a decision approving the position of Restaurant Manager. The Tribunal was satisfied, based on the evidence before it, that this approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. Consequently, the Tribunal found that the applicant met the requirements of clause 187.233.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first applicant met the requirements of clause 187.233 for a Subclass 187 visa.