Fernando (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to have a decision of the Department of Home Affairs refusing their visa application reviewed by the Tribunal. The central dispute revolved around whether the applicant had satisfied the criteria for the visa, specifically concerning the requirement for an approved nomination.

The Tribunal was required to determine whether there was an approved nomination for the position in regional Australia, as stipulated by Clause 187.233. This clause requires, among other things, that the nomination has been approved and not subsequently withdrawn, and that the visa application was made within six months of the nomination's approval. The Tribunal also had to consider whether the applicant had met the criterion that the person who will employ the applicant is the person who made the nomination.

At the hearing, the applicant conceded that the nomination application had been refused by the Department and that there was no current approved nomination. The applicant explained that they believed they were a victim of migration fraud perpetrated by a recruitment company, and that the nomination was not genuine. However, the Tribunal noted that it had no discretion to consider the circumstances leading to the nomination's refusal and was solely tasked with determining whether an approved nomination existed. As the applicant conceded there was no approved nomination, and no merits review application for the nomination had been lodged with the Tribunal, the Tribunal concluded that a mandatory criterion for the visa had not been met.

Consequently, the Tribunal affirmed the decision of the Department not to grant the applicant the Regional Employer Nomination (Permanent) (Class RN) visa.