Luk (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a Retail Store Manager. The applicant's visa application was before the Tribunal for review, and the central dispute revolved around whether the nominated position met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. The Tribunal, constituted by Terrence Baxter, was required to determine if the nominated position was approved and met all associated criteria.

The primary legal issue before the Tribunal was whether the nomination for the Retail Store Manager position satisfied clause 187.233. This clause, as applicable, required the position to be located in regional Australia, identified the applicant in relation to the position (for nominations made on or after 1 July 2017), stipulated that the nominator must be the prospective employer, that the nomination must have been approved and not withdrawn, that there be no adverse information known to the Department about the nominator or associated persons (or that such information could be disregarded), that the position remained available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nominator had applied for approval of the Retail Store Manager position on 4 April 2017. This nomination application was initially refused on 22 January 2018, but the nominator sought review. On 13 August 2020, the Tribunal set aside the refusal and substituted a decision to approve the nomination by the Trustee for BAAS Rock Unit Trust. Consequently, the Tribunal concluded that criterion 187.233(3) was met. Given this finding, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for consideration of the remaining visa criteria.