Avellano (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, by Ms Avellano. The applicant sought review of a decision not to grant her the visa, which was based on the refusal of her employer's nomination for the position of Residential Care Officer.

The primary legal issue before the Tribunal was whether the nomination for the position of Residential Care Officer had been approved, as required by clause 187.233 of the Migration Regulations. The Tribunal was also required to determine if the applicant had provided any evidence to satisfy this criterion, or to demonstrate that a review of the nomination refusal had been sought or was ongoing.

The Tribunal reasoned that clause 187.233(3) mandates that the Minister must have approved the nomination. The evidence before the Tribunal indicated that the nomination lodged by Frangipani Gentle Care Group Homes Pty Ltd was refused by the Department on 23 August 2018. The applicant was provided with an opportunity to comment on this refusal but did not respond. The Tribunal noted that no evidence was presented to suggest that the nomination had since been approved or that a review of the refusal decision had been undertaken. Consequently, the Tribunal was unable to be satisfied that the nomination criterion had been met.

As the applicant had only sought to satisfy the criteria for the Subclass 187 visa under the Direct Entry stream, and had failed to meet the essential requirement of an approved nomination, the Tribunal affirmed the decision not to grant the visa.