Cheeti (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 position of Software Engineer. The applicant's employer had initially had its nomination refused by the Department. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had an approved nomination for the position with his employer, which had not ceased. This required the Tribunal to consider the requirements of clause 187.233 of the Migration Regulations 1994, which stipulated that the nominated position must be located in regional Australia, identified the applicant, and that the nomination must have been approved and not subsequently withdrawn. Further, 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 while the employer did not have an approved nomination at the time of the Department's initial decision, the Tribunal itself had subsequently set aside the refusal and substituted a decision approving the nomination on 9 November 2020. Based on the evidence presented, including the employer's confirmation of the position's availability and employment agreements, the Tribunal was satisfied that all the criteria under clause 187.233 were met.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 187.233 of Schedule 2 to the Regulations.