Bhagtana (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 visa application had been refused because the associated nomination application was initially refused by the Department of Immigration and Border Protection. The applicant sought review of this refusal. The decision was made by Member Karen McNamara of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233(3) of Schedule 2 to the Migration Regulations 1994. This clause pertains to the nomination of a position for the visa, requiring, among other things, that the nominated position be located in regional Australia, that the nominating employer be the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal reasoned that the nominating employer, Acers Food Pty Ltd, had applied for approval of a nomination for the position of Retail Manager. Although this nomination was initially refused by the Department, Acers Food Pty Ltd successfully sought review of that decision. On 22 July 2020, the Tribunal set aside the Department's refusal and substituted a decision to approve the nomination. Consequently, the Tribunal found that the applicant satisfied clause 187.233(3) of Schedule 2 to the Regulations.

Given this finding, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration. The Tribunal directed that the applicant be considered to meet the criteria under clause 187.233(3) for the Subclass 187 visa, allowing the Minister to assess the remaining eligibility requirements.