Nicoll (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 187 Regional Employer Nomination (Permanent) visa, Direct Entry stream, for a Retail Manager position. The core dispute revolved around whether the nominated position remained available to the applicant, following a complex history involving the refusal and subsequent approval of the nomination application by the Tribunal itself. The applicant's family members were also included in the application.

The primary legal issue before the Tribunal was to determine if the nominated position met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the position must be the subject of an approved nomination, located in regional Australia, and identified in relation to the applicant. Crucially, it also requires that the position remains available to the applicant and that the visa application is made within six months of the nomination's approval.

The Tribunal reasoned that its prior decision to set aside the Department's refusal and approve the nomination application meant that clause 187.233 was satisfied in respect of the applicant. However, the Tribunal noted a potential discrepancy regarding the employment location, with evidence initially suggesting a different address than the one nominated. While the nominator later provided evidence confirming the nominated Blackwater address, the Tribunal cautioned that if the applicant were employed elsewhere and a third party filled the Retail Manager role at the nominated address, doubt could arise as to the position's continued availability. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria, directing that the first applicant met criterion 187.233(3). The applications of the family members were also to be determined on remittal.