Sharma (Migration)

This matter concerned a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a Program or Project Administrator. The applicant sought review of a decision to refuse the visa. The Tribunal, constituted by Member Peter Emmerton, was required to determine whether the nomination for the position had been approved, as this was a critical criterion for the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations. This clause outlines several conditions related to the nominated position, including that it must be located in regional Australia, be the subject of an approved nomination, and that the applicant must be identified in relation to the position if the nomination was made on or after 1 July 2017. The Tribunal also had to consider whether the employer was the nominator, if the nomination had been approved and not withdrawn, whether there was adverse information concerning the nominator, if the position remained available, and the timeframe between nomination approval and visa application.

The Tribunal reasoned that it had previously set aside the Department's decision and substituted its own decision approving the appointment for the position of Program or Project Administrator. Based on the evidence presented, the Tribunal was satisfied that the approved position was the same as that which was the subject of the relevant nomination application and that it identified the applicant. Furthermore, the Tribunal found that the employer was the nominator and that the nomination had been approved. Consequently, the Tribunal concluded that the applicant met the requirements of clause 187.233.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the visa application to the Minister for reconsideration of the remaining criteria. The Tribunal directed that the applicant met the criteria specified in clause 187.233 of Schedule 2 to the Regulations.