Sharma (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), direct entry stream, for a cook. The applicant's related position nomination application had initially been refused by a delegate of the Minister for Home Affairs. The applicant sought review of this refusal. The Tribunal, constituted by Jade Murphy, was required to determine whether the position to which the visa application related was the subject of an approved nomination.

The central legal issue was the interpretation and application of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines the requirements for a nominated position in the Direct Entry stream, including that the position must be located in regional Australia, identified in the nomination application, and that the nomination must have been approved and not subsequently withdrawn. Further requirements include that the employer must be the nominator, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonably disregarded), the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that while the nomination application was initially refused on 19 June 2019, the applicant subsequently applied for review. On 30 November 2022, the Tribunal set aside the delegate's refusal decision and substituted a new decision approving the nomination. Consequently, the Tribunal found that the nomination, as referred to in clause 187.233(1), had now been approved, thereby satisfying this criterion. The Tribunal concluded that the appropriate course was to remit the visa applications to the Minister for reconsideration of the remaining visa criteria.