Gurung (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 the position of Chef. The applicant's employer, Dalbur Holdings Pty Ltd, had initially had its nomination refused by a delegate of the Minister for the Department of Home Affairs. Dalbur Holdings Pty Ltd subsequently applied for review of this decision with the Tribunal. The Tribunal, constituted by Jade Murphy, considered whether the position to which the visa application related was the subject of an approved nomination.

The primary legal issue before the Tribunal was to determine whether the nomination lodged by Dalbur Holdings Pty Ltd met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations. This clause, as applicable, required that the nominated position be located in regional Australia, be the subject of an approved nomination that had not been withdrawn, and that certain conditions regarding adverse information and the timing of the visa application relative to the nomination approval were met. The Tribunal also considered whether the person who would employ the applicant was the same person who made the nomination, and whether the position remained available to the applicant.

The Tribunal reasoned that on 30 November 2020, it had set aside the Department's decision refusing the nomination application and substituted a new decision approving the nomination. Consequently, the Tribunal found that the nomination, referred to in paragraph 187.233(1), had been approved. Based on this finding, the Tribunal concluded that clause 187.233(1) was satisfied.

Given that the nomination criteria were met, 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 the criteria under cl 187.233(1) of Schedule 2 to the Regulations.