Xu (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, specifically a Subclass 187 Regional Sponsored Migration Scheme visa under the Direct Entry stream, for the position of Marketing Specialist. The applicant sought review of a decision concerning their visa application.

The primary legal issue before the Tribunal was whether the applicant met the requirements of cl.187.233(3) of Schedule 2 to the Regulations, which pertains to the nomination of a position for the visa. This clause requires, among other things, that the nominated position be located in regional Australia, that the applicant be identified in relation to the position if the nomination was made on or after 1 July 2017, that the nominating employer be the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, or that such information is reasonable to disregard, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nominating employer's application for approval of the Marketing Specialist position was initially refused by the Department, leading to the refusal of the applicant's visa. However, on review, the Tribunal set aside the Department's decision and substituted a new decision to approve the nomination. The Tribunal also noted that in a related application concerning adverse information about the applicant, it had found it reasonable to disregard such information, and these findings were equally applicable here. Consequently, the Tribunal concluded that the applicant satisfied cl.187.233(3).

Given that the applicant had only sought to satisfy the criteria for the Subclass 187 visa in the Direct Entry stream and had not made claims in respect of other streams, and as the requirements for the Direct Entry stream had not been fully met, the Tribunal remitted the visa application for reconsideration with the direction that the applicant meets cl.187.233(3).