Tu (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 the position of Restaurant Manager. The applicant's nominating employer, Ms Ta, had applied for approval of the nomination, which was initially refused by the Department. The Administrative Appeals Tribunal, constituted by Michelle East, was required to determine whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233, which outlines specific criteria for a nominated position in regional Australia under the Direct Entry stream. These criteria include that the position must be the subject of an approved nomination, that the nominator must be the prospective employer, that the nomination must not have been withdrawn, that there must be no adverse information known to the Department about the nominator or associated persons, that the position must remain available to the applicant, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal found that the applicant met all the requirements of clause 187.233. It noted that the nomination was for the position of Restaurant Manager, the employer was the nominator, and crucially, the Tribunal itself had previously set aside the Department's refusal and substituted a decision approving the nomination on 13 January 2021. The Tribunal was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was lodged within the prescribed six-month period. Furthermore, there was no evidence of adverse information known to the Department concerning the nominator.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria specified in clause 187.233 of Schedule 2 to the Regulations. The Minister is to consider the remaining criteria for the grant of the visa.