Harbhajan Singh (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, specifically under the Subclass 187 Direct Entry stream. The applicant sought review of a decision concerning the approval of a nominated position for a Transport Company Manager. The Tribunal, constituted by Member Peter Emmerton, was tasked with determining whether the nominated position met the relevant criteria under the Migration Regulations.

The primary legal issue before the Tribunal was whether the nominated position satisfied the requirements of clause 187.233 of Schedule 2 to the Migration Regulations. This clause outlines several conditions that must be met for a position nomination to be approved, including that the position must be the subject of an approved nomination application, that the employer is the nominator, that the nomination has not been withdrawn, and that there is no adverse information known to the Department, or that such information is reasonable to disregard. The Tribunal also had to consider whether the position remained available and if the visa application was lodged within the prescribed timeframe after nomination approval.

The Tribunal reasoned that it could rely on its previous findings in a related nomination application, which had been set aside and substituted with a decision approving the appointment. Based on the evidence presented, the Tribunal was satisfied that the approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. Consequently, the Tribunal found that the applicant met the requirements of clause 187.233, specifically subclauses (1), (2), and (3).

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the applicant be considered to meet the requirements of clause 187.233 for the Subclass 187 visa.