Fernandez (Migration)

The Administrative Appeals Tribunal considered an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, made by Ms. Fernandez. The dispute centred on whether the nomination of the position by the employer, Frangipani Gentle Care Group Homes Pty Ltd, had been approved, as required by the relevant migration regulations.

The primary legal issue before the Tribunal was to determine whether the applicant had satisfied clause 187.233 of the Migration Regulations 1994, specifically the requirement that the nomination for the position must have been approved by the Minister. The Tribunal also had to consider the implications of the nominating employer not lodging a review of the Department's decision to refuse the nomination.

The Tribunal reasoned that clause 187.233(3) mandates the approval of the nomination. Evidence before the Tribunal indicated that the nomination had been refused by the Department and that the applicant's employer had not sought a review of this refusal from the Tribunal. While the employer had suggested the possibility of an appeal to the Federal Court, there was no substantive evidence presented to the Tribunal to support such an action. Consequently, in the absence of any indication that the nomination had been approved or had a prospect of approval, the Tribunal concluded that this essential criterion could not be met.

The Tribunal affirmed the decision not to grant the visa to Ms. Fernandez and, by extension, to any secondary applicants who applied as members of her family unit, as the primary applicant had failed to meet the necessary visa requirements.