Gill (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the temporary residence transition stream. The dispute arose because the applicant's nominated position was refused approval by a delegate of the Minister for Home Affairs, and this refusal was subsequently affirmed on review by the Tribunal. The applicant's visa application was contingent on the approval of this nomination.

The primary legal issue before the Tribunal was whether the applicant could satisfy clause 187.223 of Schedule 2 of the Migration Regulations 1994, which requires the position to which the visa application relates to be the subject of an approved nomination. This clause, as interpreted by the Full Court of the Federal Court in *Singh v MIBP* [2017] FCAFC 105, necessitates a specific, existing position that was nominated and approved at the time of the visa application. The Tribunal also considered the eligibility of secondary applicants, who could only be granted a visa if the primary applicant met the criteria for a Subclass 187 visa.

The Tribunal reasoned that because the nominating employer's application for approval of the nomination was refused and this decision was affirmed, the applicant could not meet the requirement of clause 187.223. The Tribunal noted that the applicant understood that the nomination needed to be approved for their visa application to proceed. Consequently, as the primary applicant could not satisfy the criteria, the secondary applicants, who were not members of a family unit of a person who had been granted a Subclass 187 visa based on satisfying the primary criteria, also could not satisfy their respective criteria.

The Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.