Ding (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant was the subject of an approved nomination, however, the sponsoring employer's initial position nomination had been refused by a delegate of the Minister. The employer subsequently applied for a review of this refusal, and the Tribunal set aside the delegate's decision, substituting a new decision that approved the nomination. The decision under review was made by Jade Murphy, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the position to which the visa application related was the subject of an approved nomination that identified the visa applicant, as required by clause 187.233 of the Migration Regulations 1994. This clause, as applicable, stipulated several requirements, including that the position be nominated in regional Australia, that the nomination be approved and not withdrawn, that the nominator be the prospective employer, that there be no adverse information known to the Department or that such information be disregarded, that the position remain available to the applicant, and that the visa application be made within six months of the nomination's approval.

The Tribunal reasoned that as the nomination had been approved by the Tribunal on review, and given the other requirements of clause 187.233 were met, the criterion was satisfied. The Tribunal found that the position to which the application related was indeed the subject of an approved nomination that identified the visa applicant. Consequently, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining criteria for the visa. The Tribunal directed that the applicant met clause 187.233 of Schedule 2 to the Regulations.