Wang (Migration)

This matter concerned an appeal by a visa applicant against the refusal of their Subclass 187 (Regional Sponsored Migration Scheme) visa. The core of the dispute revolved around whether the applicant's nominated position had been approved, a prerequisite for the visa under clause 187.233 of Schedule 2 to the Migration Regulations 1994. The Administrative Appeals Tribunal (AAT) was tasked with determining if the requirements of this clause were met, particularly in light of a prior refusal of the employer's nomination application by a delegate.

The primary legal issue before the Tribunal was whether the employer's nomination for the applicant's position had been approved, as required by cl.187.233. This involved assessing whether the position nominated for the visa application was the same as the position that was the subject of the nomination application, and whether the nominator was the intended employer. The Tribunal also had to consider whether the nomination had been approved and not subsequently withdrawn, and if there was any adverse information concerning the nominator.

The Tribunal reasoned that for a Direct Entry stream application under cl.187.233, the nominated position must have been approved under the relevant regulations. It noted that the employer's nomination application had initially been refused by a delegate on 18 October 2017. However, on 10 July 2018, the Tribunal set aside that refusal and substituted a decision approving the appointment for the position of Accountant (General). Based on the evidence presented, the Tribunal was satisfied that this approved position was indeed 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 cl.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 criteria specified in cl.187.233.