Dabhi (Migration)

This matter concerned applications for Regional Employer Nomination (Permanent) (Class RN) visas, specifically Subclass 187 (Regional Sponsored Migration Scheme) visas under the Direct Entry stream. The primary applicant was a Retail Manager, and the dispute centred on whether the nominated position met the regulatory requirements for the visa. The decision was made by the Tribunal.

The core legal issue before the Tribunal was to determine whether the nominated position satisfied the requirements of clause 187.233 of the Migration Regulations. This clause, as applicable, stipulated several conditions, including that the position be located in regional Australia, be the subject of an approved nomination that had not been withdrawn, and that the applicant be identified in the nomination if made after 1 July 2017. Further requirements included that the nominator be the prospective employer, that no adverse information be known to the Department 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 lodged within six months of the nomination's approval.

The Tribunal considered evidence, including tax and accounting documents, and found that the nominator was indeed the prospective employer and that the nomination had not been withdrawn. Crucially, the Tribunal set aside a prior delegate's decision and substituted a decision approving the nomination on the day of its own decision. It also found no adverse information concerning the nominator or associated persons and accepted evidence that the position remained available. Given the visa application was made on 26 December 2016 and the nomination was approved on 17 March 2021, the Tribunal found the application was not made more than six months after the nomination approval. The applications of the second and third applicants were refused due to the initial lack of an approved nomination for the first applicant.

Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister. The Tribunal directed that the first applicant met the criteria under clause 187.233 of Schedule 2 to the Migration Regulations.