O'Connell (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review concerning a Subclass 187 Regional Employer Nomination (Permanent) visa, Direct Entry stream. The applicant, Ms O’Connell, sought review of decisions made by delegates of the Minister that refused to approve nominations by a company for a specific position.

The primary legal issue before the Tribunal was whether the company's nomination of the position met the requirements of clause 187.233 of the Migration Regulations 1994, specifically at the time of the Tribunal's decision. This clause relates to the approval of nominations for the Subclass 187 visa.

The Tribunal reasoned that the delegates' original decisions refusing the nominations were flawed. Instead of remitting the matter for further consideration by the delegates, the Tribunal exercised its power to set aside those decisions and substitute its own. The Tribunal found that, at the time of its decision, the nomination of the position was approved, thereby satisfying the criterion in clause 187.233(3). Consequently, the Tribunal remitted Ms O’Connell’s visa application to the Minister for reconsideration, with the direction that she met the nomination criterion. The Department would then assess whether she met the remaining criteria for the visa.