Modgil (Migration)

This matter concerned a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a Retail Manager (General). The applicant sought review of a decision to refuse the visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the visa, specifically clause 187.233 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nomination for the position had been approved and met the requirements of clause 187.233. This clause outlines several conditions, including that the nominated position must be located in regional Australia, the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, and there must be no adverse information known to the Department of Immigration concerning the nominator or associated persons, or such information must be disregarded. Additionally, the position must remain available to the applicant, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal found that the nominated position, that of Retail Manager (General), was the same as that declared in the visa application and that the nominator was indeed the prospective employer. Crucially, the Tribunal determined that it had previously approved the appointment for this position under regulation 5.19(4) in a prior decision. Based on this prior approval, the Tribunal concluded that the requirements of clause 187.233 were met.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the applicant satisfied clause 187.233 of Schedule 2 to the Regulations.