MAINALI (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, specifically under the Direct Entry stream of the Subclass 187 visa. The dispute arose after a delegate's decision to refuse the nomination application. The Tribunal, constituted by C. Packer, was required to reconsider this decision.

The primary legal issue before the Tribunal was whether the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994 were met, particularly concerning the approval of the nomination. This clause mandates that the nominated position must be located in regional Australia, be the subject of an approved nomination application, and be the position declared in the visa application. The Tribunal also implicitly considered whether the position remained available to the applicant.

The Tribunal reasoned that in a prior decision (Tribunal case 1803838), it had already found that the nominator, Sesha Pty Ltd, met the requirements of regulation 5.19 for the approval of the nomination. Consequently, the Tribunal set aside the delegate's refusal decision and substituted an approval of the nomination. This satisfied clause 187.233(3) of the Regulations.

Given these findings, the Tribunal remitted the visa applications to the Minister for reconsideration. The remittal was accompanied by a direction that the applicant met the criteria specified in clause 187.233(3) of Schedule 2 to the Regulations, allowing the Minister to assess the remaining visa criteria.