MUSHTAQ (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), direct entry stream. The applicant was nominated for the position of Office Manager by The Trustee for the Sierra Lee Family Trust. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the nomination criteria under Clause 187.233 of the Migration Regulations 1994 were met, particularly in light of the Department's initial refusal of the nomination application.

The primary legal issue before the Tribunal was whether the nomination for the applicant's position as Office Manager had been approved and had not been subsequently withdrawn, as required by Clause 187.233(3). This clause outlines several conditions, including that the nominated position must be located in regional Australia, the employer must be the nominator, the nomination must be approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that while the Department had initially refused the nomination, the subsequent review application by The Trustee for the Sierra Lee Family Trust resulted in the Tribunal setting aside the Department's decision and substituting a decision approving the nomination on 13 October 2022. As the relevant nomination had now been approved, the Tribunal found that Clause 187.233(3) was satisfied. The Tribunal also noted that it did not consider a hearing to be necessary, as it could determine the matter based on the material before it pursuant to s.360(2)(a) of the Migration Act 1958.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria specified in Clause 187.233(3) of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the visa.