Dunn (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Direct Entry stream. The central dispute revolved around the withdrawal of the employer's nomination for the applicant's position.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of the Migration Regulations. This clause mandates that for the Direct Entry stream, the nominated position must have been approved, not subsequently withdrawn, and must remain available to the applicant. The Tribunal also had to consider whether any adverse information known to the Department of Immigration about the nominator or associated persons could be disregarded.

The Tribunal reasoned that a key criterion for the visa grant was that the nominated position must have been approved, not withdrawn, and still available. The evidence clearly showed that the employer had withdrawn the nomination, rendering the position unavailable. Despite the applicant's submissions regarding personal circumstances, the toxic work environment, and her desire to remain in Australia, the Tribunal found that this withdrawal was a fatal flaw to her application under the Direct Entry stream. The Tribunal also addressed a certificate under s.376 of the Migration Act, deeming it invalid and irrelevant to the review.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 187 visa, as the essential requirements of the Direct Entry stream had not been met due to the withdrawn nomination.