Ha (Migration)

The Administrative Appeals Tribunal considered a decision concerning a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought review of a decision that affirmed the refusal of their visa application. The core of the dispute revolved around whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the approval of the nomination for the position.

The Tribunal was required to determine if the applicant satisfied clause 187.233(3), which mandates that the Minister has approved the nomination. This clause, as applicable, requires the nominated position to be located in regional Australia, be the subject of an approved nomination application, and, for nominations made on or after 1 July 2017, identify the applicant in relation to the position. Further, the employer who made the nomination must be the one intending to employ the applicant, the nomination must not have been withdrawn, there must be no adverse information known to the Department about the nominator or associated persons (or such information must be disregarded), the position must remain available, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal's reasoning focused on the fact that the nominator, The Trustee for Hastings Trust, had its nomination application refused by the Department on 17 January 2019. This refusal was subsequently affirmed by the Tribunal on 6 January 2022. As clause 187.233(3) requires an approved nomination, and the nomination in this case was refused and that refusal was affirmed, this essential criterion for the visa grant could not be met. The Tribunal noted that if the primary applicant fails to satisfy the criteria, secondary applicants who are family members will also not meet their respective criteria. The applicant was granted an extension to respond to this information but had been aware of the reasons for the refusal for a significant period.