Hossain (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme). The applicant had been refused a visa by the delegate on the basis of failing to satisfy Public Interest Criterion (PIC) 4020(1). A subsequent Tribunal review, differently constituted, affirmed this refusal, finding that the applicant's employer nomination had been refused and that the applicant was therefore not the subject of an approved nomination. This latter issue arose because the nominating employer had been deregistered by ASIC, leading to the cessation of its legal existence and the inability to review the nomination refusal. The Federal Court had previously noted that the applicant's compliance with PIC 4020(2) did not overcome the PIC 4020(1) bar.

The primary legal issue before the Tribunal was whether the applicant met PIC 4020(1), which requires that there be no evidence of the applicant having provided a bogus document or false or misleading information in relation to their visa application or a previous visa held within the preceding 12 months. This criterion was relevant for the purposes of clause 187.213(1) of the Migration Regulations 1994. The Tribunal was also required to consider its power, pursuant to s 349(2)(c) of the Migration Act 1958 and reg 4.15(1)(b) of the Regulations, to remit the visa application to the Department with a direction that the applicant satisfied PIC 4020(1).

The Tribunal reasoned that, despite the applicant not satisfying other criteria for the visa, including the requirement for an approved nomination, it was permissible to make findings in relation to PIC 4020(1) given the applicant's request and the Federal Court's remarks. The Tribunal therefore confined its consideration to the issue of PIC 4020(1). The Tribunal concluded that it was appropriate to remit the matter to the Department for reconsideration of the remaining visa criteria, including the nomination requirement.

The Tribunal remitted the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with a direction that the first named applicant meets PIC 4020 for the purposes of cl 187.213(1) of Schedule 2 to the Regulations.