Dermawan (Migration)

The Administrative Appeals Tribunal (AAT) considered a matter concerning Ms Dermawan's application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The dispute arose after the Department of Immigration initially refused the applicant's visa application, which was predicated on a nomination by Diplomat Holdings (Aust) Unit Trust for the position of Cook. The core of the issue was whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the approval of the employer's nomination.

The Tribunal was required to determine if the nominated position met the criteria outlined in clause 187.233. This involved assessing whether the nominator was the prospective employer, if the nomination had been approved and not withdrawn, if there was any adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was lodged within six months of the nomination's approval. The Tribunal also had to consider the effect of its prior decision to set aside the Department's refusal of the nomination and substitute an approval.

The Tribunal reasoned that for applicants in the Direct Entry stream, clause 187.233 mandates that the nominated position be the subject of an approved nomination. In this instance, the Tribunal had previously reviewed the Department's refusal of Diplomat Holdings' nomination and, on 9 May 2018, set aside that decision, substituting a new decision to approve the nomination. Based on the evidence before it, the Tribunal was satisfied that all the sub-criteria of clause 187.233 were met: the nominator was the prospective employer, the nomination was approved and not withdrawn, no adverse information was known to Immigration, the position remained available, and the visa application was made concurrently with the nomination.

Consequently, the Tribunal remitted Ms Dermawan's visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria specified in clause 187.233 of Schedule 2 to the Migration Regulations 1994.