Gohil (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Gohil and his family, who sought review of a decision to refuse their applications for Regional Employer Nomination (Permanent) (Class RN) visas, specifically under the Subclass 187 (Regional Sponsored Migration Scheme) Direct Entry stream. The core of the dispute revolved around whether the applicants met the eligibility criteria for this visa subclass, particularly concerning an approved nomination for a Retail Manager position.

The primary legal issue before the Tribunal was whether the applicants had satisfied clause 187.233 of the Migration Regulations, which requires the position to which the visa application relates to be the subject of an approved nomination by the prospective employer. This clause further stipulates several conditions, including that the nominating employer must be the one who will employ the applicant, the nomination must have been approved and not withdrawn, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the applicants' nominating employer, V26 Group of Companies Pty Ltd, had its nomination refused by the Department. Although the company sought review of this refusal, the Tribunal lacked jurisdiction to hear that matter because the company had been deregistered. Consequently, there was no evidence before the Tribunal that the applicant's nomination was approved. The Tribunal noted that current authority and departmental policy indicate that a later nomination, even for the same position by the same employer, cannot satisfy the Schedule 2 criteria for the Direct Entry stream. While the applicants presented compassionate circumstances, including the nomination failure being beyond their control and their long-term settlement in Australia, the Tribunal found it had no legal discretion to consider these factors when assessing the regulatory requirements.

The Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas. The applicants were advised that they could seek Ministerial intervention under section 351 of the Migration Act if they believed their case involved sufficiently compelling or unique circumstances.