Byrne (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for the nominated position of Personal Assistant (Finance). The applicant sought review of a decision by the Department to refuse the nomination. The decision was made by Phoebe Dunn, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause, as applicable, required the position to be located in regional Australia, identified the applicant in relation to the position (for nominations made on or after 1 July 2017), stipulated that the nominator must be the prospective employer, that the nomination must have been approved and not withdrawn, that there be no adverse information known to Immigration about the nominator or associated persons (or that such information be disregarded), that the position remain available to the applicant, and that the visa application be made within six months of the nomination's approval.

The Tribunal reasoned that the Department's initial refusal of the nomination was based on a finding that the applicant did not meet clause 187.233(3). However, the Tribunal noted that the nominator had applied for review of this decision, and on 9 November 2020, the Tribunal set aside the Department's decision and substituted a decision approving the nomination. Consequently, the Tribunal found that the relevant nomination had been approved, and therefore the applicant met the requirements of clause 187.233(3). The Tribunal also noted it was unable to make a direction regarding a secondary applicant's eligibility as the primary applicant did not hold the Subclass 187 visa at the time of the Tribunal's decision.

The Tribunal remitted the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration. It directed that the first named applicant meets the criteria under clause 187.233(3) of Schedule 2 to the Regulations. The case of the secondary applicant was referred to the Department for consideration afresh.