Saha (Migration)

This matter concerned a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a Cook. The applicant relied on evidence provided to the Tribunal and previously to the department. The central dispute revolved around whether the employer's nomination for the position had been approved, a prerequisite for the visa application.

The Tribunal was required to determine whether the nomination for the position of Cook met the requirements of clause 187.233 of the Regulations. This involved assessing whether the nominated position was the subject of an approved nomination application under the relevant regulations, whether the applicant was identified in relation to that position, and whether the nomination was made in relation to a Direct Entry stream visa. Further considerations included whether the employer who made the nomination was the prospective employer, if the nomination had been approved and not withdrawn, and if there was any adverse information concerning the nominator or associated persons. The Tribunal also had to consider if the position remained available to the applicant and if the visa application was lodged within six months of the nomination's approval.

The Tribunal found that the sponsoring employer lodged a nomination on 8 August 2019, which was subsequently refused on 28 October 2019. However, on 28 August 2023, the Tribunal set aside the Department's decision and substituted a 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 which was the subject of the relevant nomination application, identified the applicant in relation to the position, and was made in relation to a visa in a Direct Entry stream, thus meeting the requirements of subregulation 5.19(12). The Tribunal was also satisfied that the position was the same as that declared in the visa application. Consequently, the Tribunal found that the visa applicant satisfied the requirements of clause 187.233.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration of the remaining visa criteria. The Tribunal directed that the first named applicant meets the criteria specified in clause 187.233 of Schedule 2 to the Regulations.