Cappellari (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, specifically under the Subclass 187 Regional Sponsored Migration Scheme, Direct Entry stream. The applicant sought review of a decision where their nomination was initially refused by the Department. The Administrative Appeals Tribunal, constituted by Michelle East, was required to determine whether the applicant met the requirements of clause 187.233 of the Migration Regulations.

The primary legal issue before the Tribunal was whether the nominated position and the nomination itself satisfied the criteria set out in clause 187.233. This clause outlines several requirements, including that the position must be located in regional Australia, be the subject of an approved nomination that has not been withdrawn, and that the applicant must be identified in the nomination if made after 1 July 2017. It also requires the employer to be the nominator, the position to remain available, and the visa application to be lodged within six months of the nomination's approval, with no adverse information known to Immigration about the nominator or associated persons, or that such information is reasonable to disregard.

The Tribunal found that the applicant met all the requirements of clause 187.233. It noted that the nominated position of Hotel or Motel Manager was the same as in the nomination application, and the employer was the nominator. Crucially, the Tribunal had previously set aside the Department's refusal and approved the nomination on 28 March 2019. The Tribunal was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was lodged within the prescribed timeframe. Furthermore, there was no evidence of adverse information concerning the nominator.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the applicant had met the criteria under clause 187.233. The Minister was to proceed to consider the remaining criteria for the grant of the visa.