Guzman (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to rely on a nomination made by Frangipani Gentle Care Group Homes Pty Ltd, identified by transaction reference number EGOFLFHIMM. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the relevant nomination had been approved.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of the Migration Regulations 1994. Specifically, the Tribunal had to ascertain if the nomination associated with the applicant's visa application had been approved, as required by clause 187.233(3). The Tribunal also considered whether the applicant could rely on a new nomination or a nomination from a different employer to satisfy the visa criteria.

The Tribunal reasoned that clause 187.233(3) mandates the approval of the nomination that was the subject of the visa application. Evidence before the Tribunal indicated that the associated nomination had been refused by the Department. The Tribunal explained to the applicant that, based on judicial interpretation, only the nomination made at the time of the visa application could be relied upon to meet the criterion, and a new nomination would not assist in the current review. The Tribunal noted that it could not provide advice on future visa options.

Consequently, as the essential requirement of an approved nomination for the position identified in the visa application had not been met, the Tribunal affirmed the delegate's decision not to grant the visa. The Tribunal concluded that it was futile to grant the applicant further time to obtain a new nomination, as it would not rectify the failure to meet the criteria for the current application.