Varsani (Migration)

This matter concerned an appeal by the applicant against a decision of the Department of Immigration regarding a Subclass 187 Regional Employer Nomination (Permanent) visa. The core dispute revolved around whether the nomination for the applicant's position as a Retail Manager had been approved and whether the nominated position remained available to the applicant. The decision was made by the Migration Review Tribunal.

The Tribunal was required to determine whether the applicant met the requirements of clause 187.233 of Schedule 2 to the relevant regulations. This clause outlines several criteria for a valid nomination, including that the position must be nominated in an application for approval, located in regional Australia, and that the person who will employ the applicant must be the nominator. Crucially, the clause also requires that the nomination has been approved, has not been withdrawn, and that the position is still available to the applicant.

The Tribunal found that the nominated position of Retail Manager was the same as that which was the subject of the relevant nomination application and the visa application declaration, thus satisfying subclause 187.233(1). It also found that the employer was the nominator, satisfying subclause 187.233(2). Critically, the Tribunal had previously set aside the Department's decision and substituted its own decision approving the appointment for the position. Based on this prior approval, the Tribunal concluded that the applicant met the requirements of subclause 187.233(3) and that the position remained available.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the applicant met the requirements of clause 187.233 for a Subclass 187 visa.