BIN ILYAS (Migration)

This matter concerned an application for review of a decision not to grant the applicant, a citizen of India, a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant had arrived in Australia in July 2014 and had limited employment experience in Australia. The Department had previously refused the applicant's visa application because the nomination for the position had been refused. The applicant sought review of this refusal by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination for the position, as required by clause 187.233 of the Migration Regulations. This clause stipulated that the position must be nominated, the nominator must be the prospective employer, the nomination must have been approved and not subsequently withdrawn, and other criteria relating to the nominator and the position's availability must be met. The Tribunal also considered whether the applicant had provided sufficient information to satisfy these criteria.

The Tribunal noted that the Department had advised the applicant that the nomination had been refused and that the visa application could not be approved. The applicant had responded by requesting the application be refused so it could be taken to the Tribunal. Crucially, the Tribunal ascertained that an application for review of the refusal of the nomination itself had been lodged out of time, meaning the Tribunal had no jurisdiction to consider that review. Consequently, the nomination remained refused. The Tribunal concluded that as the requirement for an approved nomination had not been met, and there was no pending review of the nomination refusal, the decision to refuse the visa must be affirmed.

The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.