Lin (Migration)

This matter concerned a Regional Employer Nomination (Permanent) visa (Subclass 187) in its Direct Entry stream. The dispute arose because the employer's nomination for the visa applicant had initially been refused by a delegate of the Minister. The applicant subsequently appealed this refusal to the Tribunal.

The primary legal issue before the Tribunal was whether the employer's nomination had been approved, as required by clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several criteria for a valid nomination, including that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, and there must be no adverse information known to the Department about the nominator or associated persons, or such information must be disregarded.

The Tribunal reasoned that it was required to make findings of fact on material matters in dispute, including assessing the credibility of evidence. It noted that the employer had lodged a nomination on 15 June 2016, which was refused on 3 April 2017. However, on 30 April 2018, the Tribunal set aside the delegate's decision and substituted its own decision, approving the appointment for the position of Sales and Marketing Manager. Based on the evidence presented, the Tribunal was satisfied that the approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. Consequently, the Tribunal found that the visa applicant met the requirements of clause 187.233.

Given these findings, the Tribunal remitted the visa applications to the Minister for reconsideration, with the direction that the first applicant met the criteria specified in clause 187.233 of Schedule 2 to the Regulations.