Yap (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal (AAT) regarding a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream. The applicant sought a visa, which required an approved nomination by a regional employer. The core dispute revolved around whether the employer's nomination had been validly approved, given that it had initially been refused by a delegate of the Minister but was subsequently approved by the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria under clause 187.233 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to ascertain if the nominated position was the subject of an approved nomination, if the nominator was the intended employer, if the nomination had been approved and not withdrawn, and if there was no adverse information concerning the nominator or associated persons, or if such information was reasonable to disregard. The Tribunal also needed to confirm that the position remained available and that the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that for the Direct Entry stream of the Subclass 187 visa, clause 187.233 mandates that the nominated position must have been approved. In this instance, although the initial nomination was refused by a delegate, the Tribunal, on appeal, set aside that decision and substituted its own decision approving the appointment for the position of Café or Restaurant Manager. The Tribunal found that the position approved by it was the same as that which was the subject of the relevant nomination application and the visa application declaration. Consequently, the Tribunal concluded that the applicant met the requirements of clause 187.233.

Given its finding that the applicant satisfied clause 187.233, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first named applicant meets the criteria specified in clause 187.233 for a Subclass 187 visa.