Brar (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, made by the first applicant, with the second applicant seeking to be included as a family member. The dispute arose from the refusal of the visa application by the Department of Home Affairs, which the Administrative Appeals Tribunal (AAT) was asked to review. The third applicant's status was also addressed.

The primary legal issue before the Tribunal was whether the first applicant met the criteria for a Subclass 187 visa, specifically clause 187.233, which requires that the nominated position be the subject of an approved nomination. This involved considering legislative amendments that came into effect on 18 March 2018, which altered the requirements for nominations supporting visa applications. The Tribunal also had to determine if the second applicant met the criteria for inclusion as a family member or in their own right, and whether it had jurisdiction concerning the third applicant.

The Tribunal reasoned that clause 187.233 was not met because the nomination lodged by Simgil Pty Ltd was refused by the Department on 31 July 2018, and this refusal was affirmed by the Tribunal on 30 July 2021. Although the nomination was lodged before 18 March 2018, the legislative changes meant that a post-18 March 2018 nomination could not satisfy the criteria for a visa application made prior to that date, as was the case here. Consequently, the Tribunal found that the primary visa criteria were not met. The second applicant's claim was also refused as they did not meet the secondary criteria for a family member and had not demonstrated they met the primary criteria independently.

The Tribunal affirmed the decision not to grant the Subclass 187 visas to the first and second applicants. However, acknowledging that the application of the legislation might lead to an unfair or unreasonable outcome, particularly given evidence that might have led to a different conclusion in the nomination review had it been available earlier, the Tribunal referred the matter to the Minister for consideration under s.351 of the Migration Act 1958. The Tribunal stated it had no jurisdiction in relation to the third applicant.