HWANG (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), specifically the Direct Entry stream for an Accountant (General) position. The primary applicant sought this visa, and the Tribunal was tasked with determining whether the application was supported by an approved nomination that met the relevant regulatory criteria.

The central legal issue before the Tribunal was whether the primary applicant's visa application satisfied clause 187.233 of Schedule 2 to the Migration Regulations. This clause outlines several requirements for an approved nomination, including that the nominated position must be located in regional Australia, be the subject of the visa application, and that the nominator is the prospective employer. Further, the nomination must have been approved and not withdrawn, with no adverse information known to the Department of Immigration concerning the nominator or associated persons, and the position must remain available to the applicant. Additionally, the visa application must have been lodged within six months of the nomination's approval.

The Tribunal considered the evidence presented and found that all aspects of clause 187.233 were met. Specifically, the Accountant (General) position was located in regional Western Australia, the nomination was made by Bernini Stone and Tiles Pty Ltd, who would also employ the applicant, and the nomination had been approved on 20 May 2021 and not withdrawn. The Tribunal was not aware of any adverse information, and the position was confirmed to be still available. Furthermore, the visa application, lodged on 17 June 2016, was made within the six-month timeframe after the nomination approval.

Consequently, the Tribunal remitted the primary applicant's visa application to the Minister for reconsideration, with a direction that the criteria under clause 187.233 had been satisfied. The Tribunal also noted that the secondary applicants' visa applications were refused solely based on the primary applicant's refusal and would be determined following the outcome of the primary applicant's reconsidered application.