Patchaye (Migration)

This matter concerned a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a Retail Manager (General). The applicant sought review of a decision to refuse the visa. The Tribunal, constituted by Peter Emmerton, was required to determine whether the nomination for the position had been approved and if the applicant met the relevant criteria.

The primary legal issue before the Tribunal was to assess whether the applicant satisfied clause 187.233 of Schedule 2 to the Migration Regulations. This clause outlines several requirements for the nominated position, including that it be located in regional Australia, that the applicant be identified in relation to the position (for nominations made on or after 1 July 2017), that the employer be the nominator, that the nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal reasoned that it had previously set aside the Department's decision and substituted a decision approving the appointment for the position of Retail Manager (General). Based on the evidence presented, the Tribunal was satisfied that the approved position was the same as that nominated and declared in the visa application, thus meeting subclause 187.233(1). Furthermore, the Tribunal found that the employer was the nominator, satisfying subclause 187.233(2), and that the applicant now met the requirements of subclause 187.233(3) in light of the Tribunal's prior approval of the appointment.

Consequently, the Tribunal found that the visa applicant satisfied the requirements of clause 187.233. The Tribunal therefore remitted the visa application to the Minister for reconsideration of the remaining criteria for the visa, with a direction that the applicant meets clause 187.233.