CHEN (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 a Retail Manager (General) position. The applicant's nominating employer, Gaole Pty Ltd, had initially applied for approval of the nomination, which was refused by the Department. The employer then sought review of this decision before the Tribunal. The Tribunal, constituted by Member Mary Sheargold, was required to determine whether the nomination for the position had been approved.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of the Migration Regulations, specifically concerning the approval of the nomination. This clause, as applicable, stipulated several conditions, including that the nominated position be located in regional Australia, that the employer who made the nomination be the one who will employ the applicant, that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the applicant's nominating employer had applied for approval of the Retail Manager (General) position. Following the employer's application for review, the Tribunal, on 21 May 2019, set aside the Department's refusal and substituted a decision to approve the nomination under subregulation 5.19(4). As the relevant nomination had been approved, the Tribunal concluded that the applicant met the requirement under clause 187.233(3). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria, including those pertaining to any secondary applicant.