Liu (Migration)

This matter concerned a visa applicant seeking a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Temporary Residence Transition stream. The dispute arose because the Tribunal was required to determine whether the applicant met the criteria for the grant of this visa, specifically focusing on the nominated position.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.223 of Schedule 2 to the *Migration Regulations 1994* (Cth). This clause outlines several conditions, including that the position must be the subject of an approved nomination identifying the visa applicant, that the nomination must not have been withdrawn, that there must be no adverse information known to Immigration, that the position must be located in regional Australia, and that the position must still be available to the applicant. A further criterion requires the visa application to be made within six months of the nomination's approval.

The Tribunal found that the applicant met clause 187.223(1) and (2), as the nominated position of Marketing Specialist was correctly identified and the nomination had been approved and not withdrawn. The Tribunal also accepted oral evidence that the position remained available to the applicant, satisfying clause 187.223(5). However, a significant issue arose regarding clause 187.223(4), which requires the position to be located in regional Australia. The Tribunal noted that the relevant legislative instrument defining "regional Australia" for visa applications made before 18 March 2018, the date of the application in question, was unclear due to amendments to regulation 5.19 without transitional provisions. Consequently, there was no current specification for this definition applicable to the applicant's circumstances.

Given the uncertainty surrounding the definition of "regional Australia" for this specific application, the Tribunal remitted the visa application to the Minister for reconsideration. The Tribunal directed that the applicant met clause 187.223 of Schedule 2 to the Regulations, but the remaining criteria, particularly the regional location requirement, needed further consideration.