Gautam (Migration)

The Administrative Appeals Tribunal considered a Regional Employer Nomination (Permanent) (Class RN) visa application under the Subclass 187 Regional Sponsored Migration Scheme, Direct Entry stream, for the occupation of Cook. The applicant had obtained the necessary qualification in Australia, utilising Recognition of Prior Learning for the entire qualification achievement. The delegate's decision was under review, and the Tribunal concluded that the matter should be remitted for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.234 of Schedule 2 to the Migration Regulations 1994. This clause outlines the criteria for applicants in the Direct Entry stream, including requirements for skills assessments and qualifications, and specifies certain classes of exempt persons. The Tribunal needed to determine if the applicant qualified as an exempt person or, if not, whether they possessed the necessary qualifications as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary.

The Tribunal found that the applicant did not fall within the specified exempt classes of persons as defined by IMMI 17/058, as they had not held a Subclass 444 or Subclass 461 visa and worked for the nominating employer for the required period. Consequently, the applicant was required to meet the criteria under clause 187.234(b) or (c). The Tribunal noted that the delegate had relied on Departmental policy, but the specific reasoning regarding the applicant's qualifications and skills assessment was not fully elaborated in the provided text.

Given these findings, the Tribunal remitted the visa applications for reconsideration. The decision directed that the first applicant meets the criteria under clause 187.234 of Schedule 2 to the Regulations. The applications of the second, third, and fourth named applicants, who applied as members of the family unit, were also remitted for reconsideration in conjunction with the primary applicant's application.