Hamweene (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the position of Residential Care Officer. The applicant was nominated by Nulsen Haven Association (Incorporated). The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated position met the criteria set out in clause 187.233. This clause requires, among other things, that the position be located in regional Australia, be the subject of an approved nomination that has not been withdrawn, that the employer is the nominator, that there is no adverse information known to the Department about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available to the applicant, and that the visa application was made within six months of the nomination approval.

The Tribunal found that the nominated position was the same as that in the r.5.19 nomination application, and the employer was the nominator. Crucially, the Tribunal noted that a prior refusal of the nomination had been set aside by the Tribunal on 27 July 2020, and the nomination was substituted with a decision to approve it. The Tribunal was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was lodged within the prescribed timeframe. Furthermore, the Tribunal found no evidence of relevant adverse information known to the Department concerning the nominator or associated persons.

Consequently, the Tribunal concluded that clause 187.233 of the Regulations was met. The Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant had satisfied this specific criterion.