LAM (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a Retail Manager (General). The applicant's nomination had initially been refused by the Department. The Administrative Appeals Tribunal (AAT) was required to determine whether the nomination had been approved, a key criterion for the visa.

The Tribunal considered whether the nominated position met the requirements of clause 187.233 of Schedule 2 to the Regulations. This involved assessing whether the position was the subject of an approved nomination, whether the employer was the nominator, and whether the nomination had been approved and not withdrawn. The Tribunal also had to consider the presence of any adverse information concerning the nominator or associated persons, the continued availability of the position, and the timeliness of the visa application relative to the nomination approval.

The Tribunal found that the position nominated was the same as that subject to the relevant nomination application and the visa application declaration, thus satisfying subclause 187.233(1). It also found that the employer was the nominator, meeting subclause 187.233(2). Crucially, the Tribunal relied on its previous decision to set aside the Department's refusal and substitute a decision approving the appointment for the position. Based on this prior approval, the Tribunal concluded that the visa applicant met the requirements of subclause 187.233(3).

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria, with a direction that the applicant satisfied clause 187.233.