Malhi (Migration)

This matter concerned applications for Regional Employer Nomination (Permanent) (Class RN) visas, specifically Subclass 187 (Regional Sponsored Migration Scheme) visas under the Direct Entry stream. The primary applicant sought a visa as a Motor Mechanic, based on a nomination made by Mr. Hussain Mgoter. The dispute centred on whether the nomination for the applicant's position had been approved, and consequently, whether the primary applicant and accompanying family members met the relevant visa criteria. The decision was made by Phoebe Dunn, a Member of the Tribunal.

The core legal issue before the Tribunal was to determine if the requirements of clause 187.233 of the Migration Regulations 1994 were satisfied, particularly concerning the approval of the nomination for the Motor Mechanic position. This clause mandates that the position be nominated, located in regional Australia, and identified in relation to the applicant. It also requires the nominator to be the prospective employer, that the nomination be approved and not withdrawn, that there be no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval. A further issue arose regarding the eligibility of the second and third named applicants, who were family members, as they could only satisfy the criteria if the primary applicant held the Subclass 187 visa.

The Tribunal reasoned that while the Department had initially refused the nomination, a subsequent review by the Tribunal had set aside that decision and substituted an approval of the nomination on 31 March 2020. As the nomination was approved and met the other stipulated conditions under clause 187.233(3), the Tribunal found that the primary applicant satisfied this criterion. However, because the primary applicant did not hold the Subclass 187 visa at the time of the Tribunal's decision, the second and third named applicants could not satisfy the family unit criteria under clause 187.311.

Consequently, the Tribunal remitted the applications for reconsideration. It directed that the first named applicant met the criteria under clause 187.233(3). The cases of the second and third named applicants were referred back to the Department for fresh consideration.