Ginige (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Ginige, who sought review of a decision concerning a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream. The core dispute revolved around the applicant's eligibility for the visa, which was contingent on an approved employer nomination. The applicant had conceded that the Department had refused the nomination application, and no application for review of that refusal had been lodged with the Tribunal.

The primary legal issue before the Tribunal was whether the requirements of Clause 187.233 of the Migration Regulations 1994 had been met, specifically concerning the existence of an approved nomination for the position. This clause mandates that the position must be the subject of an approved nomination in the Direct Entry stream, located in regional Australia, and that the nomination must have been approved and not subsequently withdrawn. Furthermore, for nominations made on or after 1 July 2017, the nomination must identify the applicant in relation to the position.

The Tribunal reasoned that a fundamental prerequisite for the grant of this visa subclass is an approved nomination. The applicant's concession that the nomination had been refused by the Department and that no merits review application had been filed meant that this essential criterion was not satisfied. The Tribunal noted that it had no discretion to consider the reasons for the nomination's refusal, as its role was solely to determine whether an approved nomination existed.

Consequently, the Tribunal affirmed the delegate's decision. The applicant's request for a delay in the decision was not granted, as no valid reason was provided, and the Tribunal was not minded to postpone the review further given the clear absence of an approved nomination.