Fontecchio (Migration)

The Administrative Appeals Tribunal considered an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for an applicant nominated as a Chef. The central dispute concerned whether the applicant possessed the necessary qualifications for the nominated occupation as defined by ANZSCO, particularly in light of the requirements for the Direct Entry stream.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the criteria under clause 187.234 of Schedule 2 to the Migration Regulations 1994. This clause outlines three alternative pathways for applicants in the Direct Entry stream to demonstrate their suitability, focusing on whether they were an exempt person, had a suitable skills assessment by a specified authority, or possessed the qualifications listed in ANZSCO as necessary for the occupation. For applications lodged on or after 18 March 2018, an additional requirement of at least three years of full-time employment in the occupation at the required skill level was also relevant, though not applicable to this specific application lodged in 2016.

The Tribunal reasoned that for applications lodged on or after 18 March 2018, applicants not falling into the category of exempt persons must have been employed in the nominated occupation for at least three years full-time at the required skill level. However, the applicant's visa application was lodged on 5 August 2016, prior to this amendment. The Tribunal found that the applicant met the criteria under clause 187.234, specifically that they possessed the qualifications listed in ANZSCO as necessary to perform the tasks of a Chef.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister, with a direction that the applicant meets the criteria under clause 187.234 of Schedule 2 to the Regulations.