Kumari (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, specifically a Subclass 187 (Regional Sponsored Migration Scheme) visa under the direct entry stream. The applicant was nominated for the position of Retail Manager (General) by Inglewood Supermarket Pty Ltd. The delegate had initially refused the approval of the nominated position, but this decision was reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the nominated position of Retail Manager (General) was genuinely available and commensurate with the applicant's employment as a Delicatessen Manager. The Tribunal was required to consider the requirements of cl.187.233 of Schedule 2 to the Migration Regulations 1994, which outlines the criteria for a nominated position in the direct entry stream, including that the position must be approved, available, and that the applicant is identified in the nomination.

The Tribunal reasoned that the nominee was employed under a common law contract consistent with the Retail Industry Award 2010 and commenced employment in the nominated region. Evidence indicated the nominee's commitment to continued employment and the ongoing availability of the position, particularly given regional labour shortages. The Tribunal found that the nominee's role as a Delicatessen Manager was commensurate with the nominated position of Retail Manager (General). Consequently, the Tribunal set aside the delegate's decision and remitted the matter to the Department for reconsideration, directing that the first named applicant met the criteria under cl.187.233 and cl.187.24 of Schedule 2. The application of a second applicant, who applied as a member of the first applicant's family unit, was to be determined by reference to the outcome of the first applicant's reconsidered application.