Memon (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 cook. The primary dispute revolved around whether the nominated position had been approved as required by clause 187.233 of the Migration Regulations 1994. The Tribunal was tasked with determining if the applicant met this criterion, given that the employer's nomination application had initially been refused by the Department but later set aside and substituted with an approval decision by the Tribunal.

The central legal issue before the Tribunal was the interpretation and application of clause 187.233, which outlines the requirements for an approved nomination for a Subclass 187 visa. Specifically, the Tribunal had to consider whether the position was the subject of an approved nomination, whether the nominator was the prospective employer, if the nomination had been approved and not withdrawn, and if there was any adverse information concerning the nominator or associated persons. The Tribunal also needed to assess if the position remained available and if the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that the employer's nomination application, initially refused by the Department on 11 July 2019, was subsequently reviewed. On 29 April 2022, the Tribunal set aside the Department's refusal and substituted a decision approving the nomination. As a result, the Tribunal concluded that the first named applicant now met the requirements of clause 187.233(2). Consequently, the Tribunal remitted the visa applications for reconsideration, directing that the first named applicant's remaining visa criteria be assessed, and that the applications of the second, third, and fourth named applicants be reconsidered in full.