Ochoa (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 dispute arose because the applicant's nominated position had initially been refused approval by a delegate of the Minister. The employer subsequently sought review of this refusal by the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, specifically whether the nominated position was the subject of an approved nomination. This involved considering the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994, which stipulates that the nominated position must have been approved and not subsequently withdrawn, among other conditions.

The Tribunal found that the employer had applied for approval of the nominated position of Chef for the primary applicant. Although the Department initially refused this nomination, the Tribunal, on review, set aside the delegate's decision and substituted a decision to approve the nomination under regulation 5.19(4). Consequently, the Tribunal concluded that the primary applicant met the requirement under clause 187.233(3) of the Regulations.

The Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the primary applicant had met the criteria under clause 187.233(3). The Minister was to consider the remaining criteria for the visa, including those pertaining to any secondary applicants.