KARKI (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a cook. The applicant's employer, The Coast Bar and Restaurant Pty Ltd, had its nomination application initially refused by a delegate of the Minister for the Department of Home Affairs. The employer subsequently applied for review of this decision with the Tribunal. The Tribunal, constituted by Jade Murphy, was required to determine whether the position to which the visa application related was the subject of an approved nomination.

The central legal issue before the Tribunal was the interpretation and application of clause 187.233(1) of Schedule 2 to the relevant regulations. This clause requires, among other things, that the position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information known to Immigration or that such information is reasonable to disregard, that the position remains available to the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's approval.

The Tribunal found that the nomination lodged by The Coast Bar and Restaurant Pty Ltd, which had been refused by the Department, was subsequently set aside by the Tribunal on 31 August 2020, and a new decision approving the nomination was substituted. Based on this finding, the Tribunal concluded that the position to which the application related was indeed the subject of an approved nomination, thereby satisfying clause 187.233(1). Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria.