Berard (Migration)

This matter concerned an application for review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to have the decision of the delegate, which affirmed the refusal of the visa, set aside. The Tribunal was required to determine whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994.

The primary legal issue was whether the applicant satisfied clause 187.233, which outlines the criteria for a nominated position in the Direct Entry stream. This clause requires, among other things, that the nominated position be approved, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information known to the Department, that the position remains available, and that the visa application was made within six months of the nomination's approval. The delegate had refused the visa because the associated nomination application, lodged by Penleaze Pty Ltd acting for The Trustee for the Fishleigh Family Trust, was not approved.

The Tribunal reasoned that the applicant's visa application could not succeed because the nomination application had been refused by the Department on 1 March 2018, and this decision was not reviewed by the nominator. Consequently, the requirement under clause 187.233(3) that the nomination must have been approved was not met. The applicant acknowledged the employer's decision not to seek review of the nomination refusal and confirmed she was no longer employed by the nominator.

The Tribunal affirmed the delegate's decision, concluding that the applicant had not met the requirements for the Subclass 187 visa in the Direct Entry stream.