Kaya (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme – direct entry stream). The applicant's employer, Huesker Australia Pty Ltd, nominated a position for the applicant, which was subsequently refused by the Department of Immigration and Border Protection. The employer then applied to the Administrative Appeals Tribunal for a review of this decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994. This clause, as applicable, required that the nominated position be located in regional Australia, that the applicant be identified in the nomination if made after 1 July 2017, that the nominator be the prospective employer, that the nomination be approved and not withdrawn, that there be no adverse information known to Immigration about the nominator or associated persons, that the position remain available to the applicant, and that the visa application be made within six months of the nomination approval.

The Tribunal found that the applicant's employer, represented by its managing director, Mr Morne Breytenbach, had made the nomination for the position of Sales Representative (Industrial Products) with an annual salary of $120,000. The Tribunal noted that the Department had initially refused to approve the nomination, but on review, the Tribunal had set aside that decision and substituted a decision to approve the nomination. The Tribunal was satisfied that the nomination had been approved and not withdrawn, that there was no adverse information concerning Mr Breytenbach, that the employment contract and deed of amendment demonstrated the position remained available to the applicant, and that the visa application was made within the prescribed six-month period after the nomination approval.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 187.233 of Schedule 2 to the Regulations.