Siddharath (Migration)

This matter concerned a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a Retail Manager (General). The applicant sought review of a decision to refuse the visa. The Tribunal, presided over by Member Peter Emmerton, was required to determine whether the applicant's nomination for the position had been approved and met the relevant criteria.

The primary legal issue before the Tribunal was the interpretation and application of clause 187.233 of the Migration Regulations 1994, which sets out the requirements for a nominated position in the Direct Entry stream. This clause mandates that the nominated position must be located in regional Australia, be the subject of an approved nomination, and, for nominations made on or after 1 July 2017, identify the applicant in relation to the position. Further requirements include that the nominator must be the prospective employer, the nomination must not have been withdrawn, there must be no adverse information known to Immigration or such information must be disregarded, the position must remain available, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal reasoned that it had previously made findings in a related nomination application that the approved position was the same as that declared in the visa application and identified the applicant. It also found that the nominator was the prospective employer. Crucially, the Tribunal determined that, in light of its prior approval of the appointment under regulation 5.19(4), the applicant now met the requirements of clause 187.233. Consequently, the Tribunal found that the visa applicant satisfied the specified criteria under clause 187.233.

The Tribunal remitted the visa application to the Minister for reconsideration of the remaining criteria for the visa, with a direction that the applicant meets the requirements of clause 187.233.