Bai (Migration)

This matter concerned an application for review of a decision to refuse to grant Regional Employer Nomination (Permanent) (Class RN) visas to the applicants. The primary applicant sought a Subclass 187 Regional Sponsored Migration Scheme visa under the Direct Entry stream, with the second applicant seeking to be included as a secondary applicant. The Administrative Appeals Tribunal (AAT) was required to determine whether the decision under review, which affirmed the refusal of the visa applications, should be upheld.

The central legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.233 of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the nomination for the position had been approved and had not been subsequently withdrawn, as this is a mandatory requirement for the grant of a Subclass 187 visa. The Tribunal also considered whether the second applicant met the secondary visa criteria as a member of the family unit of the primary applicant.

The Tribunal reasoned that a critical requirement for the grant of a Subclass 187 visa is that the position to which the application relates must be the subject of an approved nomination. The Tribunal was provided with information that the application for approval of the nominated position made by JP Moe Pty Ltd had been refused by a delegate of the Minister, and that a subsequent review of this refusal by the AAT had also been dismissed. Consequently, the nomination had not been approved. The primary applicant conceded that there was no approved nomination, explaining that a mix-up with paperwork by the migration agent had resulted in documents relating to the wrong company being submitted. The Tribunal found that the second applicant did not meet the secondary visa criteria and there was no evidence she could meet the primary criteria in her own right.

Accordingly, the Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.