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, by an applicant whose nominated position was that of a Cook. The Administrative Appeals Tribunal (AAT), constituted by Member Karen McNamara, was required to determine whether the applicant met the requirements of cl.187.233(3) of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria under cl.187.233(3), which mandates that the nominated position be located in regional Australia, identified the applicant in relation to the position (if the nomination was made on or after 1 July 2017), that the nominator be the prospective employer, that the nomination be approved and not withdrawn, that there be no adverse information known to the Department about the nominator or associated persons (or such information be disregarded), that the position remain available, and that the visa application be made within six months of the nomination's approval.

The Tribunal found that the applicant satisfied cl.187.233(3). This conclusion was reached because the nominating employer, The Trustee for the Vivo Palm Cove Hybrid Unit Trust, had applied for approval of a nomination for the Cook position. Although this nomination was initially refused by the Department, the Tribunal, in a prior review (AAT Case No.1808551), set aside that refusal and substituted a decision to approve the nomination under r.5.19 of the Regulations on 17 November 2020. Consequently, the Tribunal determined that the applicant met this specific criterion.

Given the finding that the applicant satisfied cl.187.233(3), the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant meets this criterion. The Minister is to consider the remaining criteria for the grant of the visa.