Khan (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, specifically under the Subclass 187 (Regional Sponsored Migration Scheme) Direct Entry stream, for the position of Office Manager. The Administrative Appeals Tribunal (AAT), constituted by Member Mark O'Loughlin, was tasked with reviewing a decision concerning the applicant's eligibility.

The primary legal issue before the Tribunal was whether the nomination of the relevant position had been approved in accordance with clause 187.233 of Schedule 2 to the Migration Regulations. This clause requires, among other things, that the nominated position be located in regional Australia, that the nominator be the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal considered the evidence presented by both the applicant and the Department. It found that the prospective employer was indeed the nominator and that the visa application was made prior to the nomination's approval. Crucially, by a separate decision of the same date, the Tribunal had set aside a prior decision not to approve the nomination and substituted a decision approving it. In the absence of evidence suggesting the nomination had been withdrawn, or any adverse information concerning the nominator, and with the position still available, the Tribunal concluded that clause 187.233 was met.

Consequently, the Tribunal remitted the visa applications to the Minister for reconsideration, with a direction that the first named applicant had met the criteria under clause 187.233. The Minister was to consider the remaining criteria for the Subclass 187 visa.