Han (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (Subclass 187) under the Direct Entry stream, where the applicant sought to be employed as a Retail Manager. The applicant's nomination had initially been refused by the Department. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the nomination met the relevant criteria under clause 187.233 of Schedule 2 to the Migration Regulations.

The primary legal issue before the Tribunal was whether the nomination for the Retail Manager position had been approved and satisfied the specific requirements of clause 187.233. This involved assessing whether the nominated position was the same as that declared in the visa application, whether the employer was the nominator, and whether the nomination had been approved and not subsequently withdrawn. The Tribunal also had to consider whether there was any adverse information concerning the nominator or associated persons, and if the position remained available to the applicant within the prescribed timeframe.

The Tribunal found that the approved position was indeed the same as that which was the subject of the relevant nomination application and the visa application declaration, thus satisfying clause 187.233(1). It also found that the employer was the nominator, meeting clause 187.233(2). Crucially, the Tribunal, having previously set aside the Department's refusal and substituted a decision approving the appointment for the position, concluded that the visa applicant now met the requirements of clause 187.233(3).

Given these findings, the Tribunal determined that the visa applicant satisfied the criteria specified in clause 187.233. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the visa, with a direction that the first applicant met clause 187.233.