PHULL (Migration)

The Administrative Appeals Tribunal considered a Regional Employer Nomination (Permanent) (Class RN) visa application, Subclass 187, Direct Entry stream, for a position as a Cook. The applicant relied on evidence previously provided to the Department and the Tribunal, along with written submissions. The core dispute revolved around whether the employer's nomination for the position had been approved and if the nominated position remained available to the applicant.

The Tribunal was required to determine if the applicant met the requirements of clause 187.233 of the Migration Regulations 1994. Specifically, this involved assessing whether the position was the subject of an approved nomination, whether the nominator was the prospective employer, whether the nomination had been approved and not withdrawn, whether there was any adverse information concerning the nominator or associated persons, and crucially, whether the position was still available to the applicant. The Tribunal also needed to consider the timing of the visa application relative to the nomination approval.

The Tribunal reasoned that for Direct Entry stream applicants, specific criteria under cl.187.233 must be satisfied. It found that the employer's nomination application, lodged on 21 February 2018, was initially refused on 5 June 2019. However, on 10 November 2022, the Tribunal set aside the Department's decision and substituted its own decision, approving the appointment for the position of Cook. Based on the evidence, the Tribunal was satisfied that the approved position was the same as that nominated and declared in the visa application, and that the nominator was the prospective employer. The Tribunal concluded that the applicant met the requirements of cl.187.233.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant satisfies the criteria specified in cl.187.233 of Schedule 2 to the Regulations.