GONZALEZ FONTE (Migration)

This matter concerned a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a Restaurant or Café Manager. The applicant sought review of a decision by the Department of Immigration. The Tribunal, constituted by Member Peter Emmerton, was required to determine whether the nomination for the position had been approved, a key criterion for the visa.

The central legal issue before the Tribunal was the interpretation and application of clause 187.233 of the Migration Regulations, which sets out the requirements for a nominated position in the Direct Entry stream. Specifically, the Tribunal had to ascertain whether the position was properly nominated, whether the nominator was the prospective employer, and crucially, whether the nomination had been approved and not subsequently withdrawn. The Tribunal also considered whether the position remained available and if the visa application was lodged within the prescribed timeframe after nomination approval.

The Tribunal reasoned that it was bound by its previous decision on 22 November 2018, where it had set aside the Department's refusal and substituted a decision approving the appointment for the position of Café or Restaurant Manager. Based on the evidence presented, the Tribunal found that the approved position corresponded to the one nominated and declared in the visa application. It was satisfied that the nominator was the prospective employer and that the visa applicant met the requirements of clause 187.233(3) in light of the Tribunal's prior approval of the appointment.

Consequently, the Tribunal found that the visa applicant satisfied the requirements of clause 187.233. The Tribunal therefore remitted the visa application to the Minister for reconsideration of the remaining visa criteria, with a direction that the applicant met the specified nomination requirements.