Fatima (Migration)

This matter concerned an application for a Subclass 187 (Regional Employer Nomination (Permanent) (Class RN)) visa, Direct Entry stream, by an applicant identified as Fatima. The dispute arose because the nomination lodged by the nominator, PERTH TECHNICAL COLLEGE PTY LTD, was refused by the Department of Home Affairs and this refusal was upheld when the nominator withdrew their merits review application. The Administrative Appeals Tribunal was required to review the decision to refuse the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233 of the Migration Regulations 1994, which sets out the requirements for a Subclass 187 visa nomination in the Direct Entry stream. Specifically, the Tribunal had to determine if the position to which the visa application related was the subject of an approved nomination, as required by the regulations.

The Tribunal reasoned that a fundamental requirement for the grant of a Subclass 187 visa is that the nomination must have been approved and not subsequently withdrawn. The evidence before the Tribunal indicated that the Department had refused the nominator's application on 30 May 2018, and this refusal stood because the nominator had withdrawn their subsequent merits review application on 15 February 2021. Consequently, the nomination relied upon by the applicant had not been approved. The Tribunal noted that it had invited the applicant to comment on this information, which would be a reason for affirming the decision under review.

As the applicant had failed to satisfy the essential criterion of having an approved nomination, the Tribunal concluded that the requirements for the Subclass 187 visa in the Direct Entry stream had not been met. Accordingly, the Tribunal affirmed the decision not to grant the applicant the visa.