Pham (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant sought review of a decision concerning their eligibility for this visa, specifically relating to the approval of a nominated position as a Hair or Beauty Salon Manager.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several criteria, including that the position must be nominated under specific subregulations, that the applicant must be identified in the nomination, that the employer must be the nominator, that the nomination must have been approved and not withdrawn, that there must be no adverse information concerning the nominator or associated persons, that the position must still be available, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal considered the evidence presented, including the employer's nomination application lodged on 1 September 2017, which was initially refused on 16 July 2019. However, on 22 November 2022, the Tribunal set aside the Department's decision and substituted its own decision, approving the appointment for the position of Hair or Beauty Salon Manager. The Tribunal found that the approved position was the same as that subject to the relevant nomination application and the visa application declaration, thus satisfying subclause 187.233(1). Furthermore, based on its findings in the nomination application, the Tribunal was satisfied that the employer was the nominator and that the visa applicant now met the requirements of subclause 187.233(3) in light of the Tribunal's approval of the appointment.

Given these findings, the Tribunal determined that the visa applicant satisfied the requirements of clause 187.233. Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first applicant meets the specified criteria for the Subclass 187 visa.