Behal (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the position of Store Manager. The applicant, Behal, sought review of a decision concerning the approval of the nomination for this position. The Tribunal was required to determine whether the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994 were met.

The primary legal issue before the Tribunal was whether the position nominated was the subject of an approved nomination, as required by clause 187.233. This clause mandates that the nominated position must be located in regional Australia, be the one declared in the visa application, and, for nominations made on or after 1 July 2017, identify the applicant. Further, the employer must be the nominator, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration or such information must be reasonable to disregard, the position must remain available to the applicant, and the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the nominator had applied to have the Store Manager position approved with the applicant as nominee on 23 June 2016. Although this nomination was initially refused on 10 January 2018, the nominator sought review, and on 14 September 2020, the Tribunal set aside the refusal and substituted a decision to approve the nomination. Consequently, the Tribunal concluded that clause 187.233 was satisfied.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets criterion 187.233(3) of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the visa.