Kumar (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), direct entry stream, made by an applicant identified as "Kumar" (Migration). The applicant sought review of a decision concerning the nomination of a retail manager position by Narain Das Pty Ltd ATF Narain Das Family Trust, a bakery operating in Wallan, regional Victoria. The Tribunal, constituted by Susan Reece Jones, was required to determine whether the applicant met the requirements of clause 187.233 of the Migration Regulations.

The central legal issue before the Tribunal was whether the applicant satisfied clause 187.233, which outlines the criteria for the nomination of a position in the Direct Entry stream of the Subclass 187 visa. 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in regional Australia, that the nominator be the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that while the Department had initially refused the employer nomination, this decision was subsequently set aside on review by the Tribunal on 11 January 2023, with a substituted decision approving the nomination. As the relevant nomination in respect of the applicant had now been approved, the Tribunal found that the applicant met the requirements of clause 187.233(2). Consequently, the Tribunal concluded that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining criteria for the visa. The Tribunal directed that the applicant meets the requirements of clause 187.233 of Schedule 2 to the Regulations.