AWAIS (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 Mr Muhammad Awais and his accompanying family members. The Administrative Appeals Tribunal (AAT) was required to review the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicants satisfied the criteria for the Subclass 187 visa, specifically clause 187.233, which pertains to the nomination of a position. This clause requires, among other things, that the position be the subject of an approved nomination that has not been withdrawn, and that the visa application be made within six months of the nomination's approval.

The Tribunal reasoned that the employer, Ferry Holdings, had applied to nominate Mr Awais for the position of Cook. However, this nomination application was initially refused by the Department, and although Ferry Holdings sought merits review of that refusal, the company subsequently withdrew its application for review. Consequently, the position was not the subject of an approved nomination. As this fundamental criterion of clause 187.233 was not met, the Tribunal found that the applicants did not satisfy the primary criteria for the visa. It further held that, as a result, the secondary applicants could not satisfy the secondary criteria for a grant of the visa, as they were not members of a family unit of a person who held such a visa. The Tribunal therefore affirmed the decision not to grant the visa.