Wong (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 Café or Restaurant Manager. The applicant's employer had initially not secured an approved nomination at the time of the Department's decision. The case came before the Tribunal for review of the nomination refusal.

The primary legal issue before the Tribunal was whether the applicant had an approved nomination for a position with her employer that had not ceased to be available. This required the Tribunal to consider the specific criteria outlined in clause 187.233 of the Migration Regulations 1994, which included requirements relating to the nominated position, the nominator, the approval and currency of the nomination, the absence of adverse information, the continued availability of the position, and the timing of the visa application relative to the nomination approval.

The Tribunal found that while the employer did not have an approved nomination at the time of the Department's initial decision, the employer had subsequently lodged a review application with the Tribunal. On 2 October 2020, the Tribunal set aside the Department's refusal and substituted a decision approving the nomination. Based on this, the Tribunal was satisfied that all the requirements of clause 187.233 had been met, including that the nominated position was in regional Australia, the nomination had been approved and not withdrawn, there was no adverse information, the position remained available to the applicant, and the visa application was made within six months of the nomination approval.

Consequently, the Tribunal remitted the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration by the Department, with a direction that the applicant meets the criteria under clause 187.233 of Schedule 2 to the Regulations. The second named applicant's application would be determined by reference to the outcome of the primary applicant's application on remittal.