Park (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), under the direct entry stream. The applicant, nominated by ONP Pty Ltd for the position of Cook, had their related nomination application initially refused by the Department. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994, which pertains to the nomination of a position.

The central legal issue before the Tribunal was the assessment of clause 187.233, which mandates that the nominated position must be located in regional Australia, be the subject of an approved nomination application, and, where the nomination was made on or after 1 July 2017, identify the applicant in relation to the position. Further requirements include that the nominator must be the prospective employer, the nomination must be approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons, the position must remain available, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal found that the applicant met all the requirements of clause 187.233. It noted that the position nominated was the same as that in the previous application and that the employer was the nominator. Crucially, the Tribunal had previously set aside the Department's refusal of the nomination and substituted a decision approving it on 28 January 2021. The Tribunal was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was made within the six-month timeframe after the nomination approval. Furthermore, no evidence of adverse information concerning the nominator was presented. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria, directing that the applicant met clause 187.233.