Dave (Migration)

This matter concerned an application for review of a decision not to grant Regional Employer Nomination (Permanent) (Class RN) visas, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, to the first and second named applicants. The review was heard by Karen McNamara.

The primary legal issue before the Tribunal was whether the applicants met the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the nomination of a position. This clause requires, among other things, that the position be the subject of an approved nomination, that the applicant be identified in the nomination application (if made on or after 1 July 2017), that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information known to the Department or that such information is reasonable to disregard, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the applicant had presented a new nomination to the Department, but the matter before the Tribunal related to a different nomination, in respect of which the Department had previously found the visa application was not subject to an employer's nomination. Crucially, there was no evidence before the Tribunal that the applicant's visa application was subject to an approved and unwithdrawn nomination. Consequently, the Tribunal concluded that the applicant did not meet clause 187.233(3) of Schedule 2 to the Regulations, and as this was an essential criterion, the visa could not be granted. The Tribunal also noted a lack of evidence that the second applicant met the primary requirements for the visa.

The Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to the first and second named applicants. The Tribunal also determined that it did not have jurisdiction in relation to the third named applicant.