Gomez Garcia (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a position as a Hotel or Motel Manager. The applicant, Gomez Garcia, sought review of a decision concerning an approved nomination. The Tribunal, constituted by Jade Murphy, was required to determine whether the position to which the visa application related was the subject of an approved nomination.

The central legal issue before the Tribunal was the interpretation and application of clause 187.233 of Schedule 2 to the Migration Regulations, which sets out the requirements for an approved nomination for this visa subclass. Specifically, the Tribunal had to ascertain if the nomination made by Elements of Byron Pty Ltd met the criteria, including that the position be located in regional Australia, that the applicant be identified in relation to the position (for nominations made on or after 1 July 2017), that the nominator be the prospective employer, that the nomination be approved and not withdrawn, that there be no adverse information known to Immigration or that such information be disregarded, that the position remain available, and that the visa application be made within six months of the nomination's approval.

The Tribunal reasoned that while the initial nomination lodged by Elements of Byron Pty Ltd was refused on 2 March 2018, the company subsequently applied for review. On 25 September 2020, the Tribunal set aside the delegate's decision and substituted a new decision approving the nomination. Consequently, the Tribunal found that the nomination had been approved and had not been withdrawn, thereby satisfying clause 187.233(3). Given this finding, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining visa criteria.