Dhimal (Migration)

The Administrative Appeals Tribunal considered a review of a decision by the Department of Immigration and Border Protection concerning a Subclass 187 (Regional Sponsored Migration Scheme) visa under the Direct Entry stream. The applicant's prospective employer, Nullagine Hotel Pty Ltd, had initially had its nomination application for the position of Cook refused by the Department on 21 July 2016. The employer subsequently sought review of this refusal by the Tribunal.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.233 of the Migration Regulations 1994, which outlines the criteria for the nomination of a position for a Direct Entry stream visa. This clause requires, among other things, that the employer who made the nomination continues to employ the applicant, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that it was able to determine the matter on the papers without a hearing, pursuant to section 360(2)(a) of the Migration Act 1958. It was satisfied, based on the evidence before it, that Nullagine Hotel Pty Ltd had made the nomination, continued to employ the applicant, and that the nomination had been approved and not withdrawn. Furthermore, the Tribunal was satisfied that no adverse information was known to the Department, the position remained available, and the visa application was lodged within the prescribed timeframe.

Consequently, the Tribunal remitted the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration. The Tribunal directed that the first named applicant met the criteria under clause 187.233 of Schedule 2 to the Regulations, and the Minister was to consider the remaining criteria for the visa.