VIRK (Migration)

This matter concerned a Regional Employer Nomination (Permanent) visa (Subclass 187) where the applicant’s sponsoring employer had lodged a nomination application on 30 June 2017. The employer’s nomination application was initially refused on 13 October 2017. Subsequently, on 21 June 2018, the Administrative Appeals Tribunal (the Tribunal) set aside the Department’s decision and substituted its own decision, approving the appointment for the position of Transport Company Manager. The current proceedings involved the Tribunal’s reconsideration of the visa applicant’s claims.

The primary legal issue before the Tribunal was whether the nomination for the visa applicant had been approved, as required by clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several criteria that must be met, including that the position must be the subject of an approved nomination, the nominator must be the prospective employer, there must be no adverse information known to the Department, the position must remain available, and the visa application must be made within six months of the nomination approval.

The Tribunal reasoned that it was satisfied, based on evidence provided in the nomination application and its own previous findings, that the approved position was the same as that which was the subject of the relevant nomination application and the visa application declaration. It also found that the person who would employ the applicant was the nominator. Crucially, in light of the Tribunal’s prior approval of the appointment under regulation 5.19(4), it concluded that the visa applicant now met the requirements of clause 187.233.

Consequently, the Tribunal found that the visa applicant satisfied the criteria specified in clause 187.233. The Tribunal therefore remitted the applications for Subclass 187 visas for reconsideration by the Minister, with the direction that the first applicant meets the requirements of clause 187.233.