Cho (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, made by Mr Hyunchang Cho. The primary dispute revolved around the approval of the employer's nomination, which had initially been refused by the Department of Immigration. The Administrative Appeals Tribunal (AAT) was required to review this decision.

The legal issue before the Tribunal was whether Mr Cho met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations. This clause outlines several criteria for the nominated position and the nominator, including that the position must be located in regional Australia, the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available, and the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the nominating employer, Swan Fabricators (WA) Pty Ltd, had applied for approval of a nomination for the position of Welder (First Class). Although the Department refused this nomination, the Tribunal, on review, set aside that decision and substituted a new decision to approve the nomination. The Tribunal was satisfied that the prospective employer was the nominator, the nomination had been approved and not withdrawn, and crucially, there was no evidence of adverse information known to Immigration concerning the nominator or associated persons. Furthermore, the Tribunal accepted that the position remained available to Mr Cho and that the visa application was made concurrently with the nomination, thus satisfying the time limit.

Consequently, the Tribunal remitted Mr Cho's visa application to the Minister for reconsideration, with a direction that Mr Cho met the criteria under clause 187.233. The applications by Ms Ching-Pei Yen and Master Shih-Hsuan Chao, who applied as members of Mr Cho's family unit, would be determined by reference to the outcome of Mr Cho's application.