Loh (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a dentist. The applicant's nominator, Crotty Dental, had initially applied for approval of a nominated position on 15 March 2017, which was refused by a delegate of the Minister on 4 September 2017. The nominator then sought review of this refusal. The Administrative Appeals Tribunal (the Tribunal) reviewed the delegate's decision and, on 13 August 2019, set aside the refusal and substituted a decision approving the nomination for the position of Dentist. The Tribunal, constituted by C. Packer, was required to determine whether the applicant met the criteria for the visa, specifically in light of the approved nomination.

The primary legal issue before the Tribunal was whether the nomination for the position of Dentist had been approved, as required by clause 187.233(3) of Schedule 2 to the Regulations. This clause stipulates that the Minister must have approved the nomination, and that the nomination must not have been subsequently withdrawn. The Tribunal also had regard to other relevant criteria, including that the position must still be available to the applicant and that the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that clause 187.233(3) was satisfied because it had, on 13 August 2019, set aside the delegate's refusal and approved the nominator's application for approval of the nominated position. The Tribunal noted that the original refusal had been made by a delegate, and its subsequent decision to approve the nomination meant that the requirement for an approved nomination was met. The Tribunal also considered clause 187.233(5), which requires the position to be still available to the applicant, and clause 187.233(6), which requires the visa application to be made within six months of the nomination's approval.

Given its findings, the Tribunal concluded that the appropriate course was to remit the visa application to the Minister for reconsideration. The Tribunal directed that the applicant be considered to meet criterion cl.187.233(3) of Schedule 2 to the Regulations, allowing the Minister to assess the remaining criteria for the visa.