AULAKH (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant's nominating employer, Suhansh Group Pty Ltd, had initially applied to the Department for approval of a nominated position for the applicant, which was refused. The employer then applied to the Administrative Appeals Tribunal for a review of this decision. The Tribunal, constituted by Member Mary Sheargold, was required to determine whether the applicant met the criteria for the visa, specifically concerning the approval of the nomination.

The primary legal issue before the Tribunal was whether the nomination of the position for the applicant had been approved, as required by clause 187.233 of Schedule 2 to the Migration Regulations. This clause outlines several requirements for a nomination to be considered approved, including that the nominating person is the prospective employer, the nomination has been approved and not withdrawn, there is no adverse information known to the Department about the nominator or associated persons, the position remains available, and the visa application was made within six months of the nomination's approval.

The Tribunal found that on 8 May 2018, it had set aside the Department's refusal decision and substituted a decision to approve the nomination under regulation 5.19(4). As the relevant nomination had been approved, the Tribunal concluded that the applicant met the requirement under clause 187.233(3). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria under clause 187.233(3).