Bali (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of Mr Bali and his family unit who applied for Subclass 187 Regional Employer Nomination (Permanent) visas. The dispute arose after the Department refused to grant the visas, a decision the applicant sought to have reviewed by the Tribunal. The applicant was seeking to satisfy the criteria for the Direct Entry stream of the Subclass 187 visa, intending to work as a Cook.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Subclass 187 visa, specifically clause 187.223(2) of Schedule 2 to the Migration Regulations 1994, which requires an approved employer nomination. This issue was complicated by the fact that the employer's nomination application had been withdrawn by the nominator prior to any approval. Consequently, the Tribunal also had to consider the implications for the secondary applicant, who was a member of the applicant's family unit, should the primary applicant's visa application be refused.

The Tribunal's reasoning focused on the requirement for an approved nomination. It noted that Department of Home Affairs records indicated the employer's nomination application had been withdrawn and that there was no evidence of an approved nomination in favour of Mr Bali. The Tribunal invited the applicant to comment on this information, stating that, subject to their response, the lack of an approved nomination would be a reason, or part of the reason, for affirming the delegate's decision to refuse the visa. The Tribunal also highlighted that if the primary applicant's visa was refused, the secondary applicant would not meet the criteria under clause 187.311, as they would not be a member of the family unit of a person holding a Subclass 187 visa.