Singh (Migration)

This matter concerned an appeal by Mr Singh against the refusal of his Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant's nominator, Annilax Enterprises Pty Ltd, had its nomination application initially refused by a delegate of the Minister on 17 May 2018. Subsequently, the applicant's visa application was refused on the grounds that he did not meet the criteria under the Direct Entry, Temporary Residence Transition, or Agreement streams. The Tribunal, however, by decision dated 31 January 2020, approved the nominator's application.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Subclass 187 visa, particularly in light of the subsequent approval of the nomination. The Tribunal was required to consider clause 187.233 of Schedule 2 to the Regulations, which outlines the requirements for the nomination of a position in regional Australia, including that the nomination must be approved and not subsequently withdrawn, and that the position must still be available to the applicant. The Tribunal also had to assess whether the applicant met the criteria under the other visa streams, which were also refused by the delegate.

The Tribunal reasoned that the initial refusal of the nomination application meant that the applicant did not satisfy clause 187.233(3) at the time of the delegate's decision. Furthermore, the delegate found that the applicant did not meet the requirements for the Temporary Residence Transition stream (clause 187.223) or the Agreement stream (clause 187.242). However, the subsequent approval of the nomination by the Tribunal on 31 January 2020 meant that the applicant now satisfied clause 187.233(3). Given this development, the Tribunal determined that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining criteria.