Spinola (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 Restaurant Manager. The applicant's nominating employer, Elleo Group Holdings Pty Ltd, had initially applied for approval of the nomination, which was refused by the Department. The employer then sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the position of Restaurant Manager was approved, as required by clause 187.233 of the applicable regulations. This clause, as relevant, stipulated that the position must be the subject of an approved nomination in regional Australia, and where the nomination was made on or after 1 July 2017, it must identify the applicant. Further requirements included that the nominator must be the prospective employer, the nomination must not have been withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal found that on 21 December 2020, it had set aside the Department's decision to refuse the nomination and substituted a decision to approve the nomination under regulation 5.19(4). As the nomination had been approved, the Tribunal concluded that the first named applicant met the requirement of clause 187.233(3). Consequently, the Tribunal remitted the visa applications for reconsideration by the Minister, directing that the first named applicant met the criteria under clause 187.233(3) of Schedule 2 to the Regulations, and that the Minister should consider the remaining visa criteria, including those pertaining to the secondary applicant.