FERNANDO (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, brought by the first applicant, with the second and third applicants seeking to join as family unit members. The Administrative Appeals Tribunal was required to determine whether the applicants had satisfied the criteria for the visa, specifically focusing on the requirement for an approved nomination.

The primary legal issue before the Tribunal was whether the nominated position, as required by clause 187.233 of the Migration Regulations 1994, had been the subject of an approved nomination. Clause 187.233 outlines several conditions, including that the position must be nominated in an application for approval, that the nominator must be the prospective employer, that the nomination must have been approved and not withdrawn, and that the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the applicant's visa application was refused because the application for approval of the nominated position made by the nominator had been refused by a delegate of the Department and this decision was not appealed, thus becoming final. Consequently, the nominated position referenced in the applicant's visa application had not been approved as required by clause 187.233(3). As the first applicant failed to meet this primary criterion, the applications of the second and third applicants, who relied on being members of the family unit of the primary applicant, also failed as they did not satisfy clause 187.311. The Tribunal affirmed the decisions not to grant the applicants the visas.