Hout (Migration)

The Administrative Appeals Tribunal considered the case of the applicants seeking a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, under the Direct Entry stream. The dispute arose because the nominated position, held by Oscar Investments (WA) Pty Ltd T/A The Holt Family Trust, was not the subject of an approved nomination at the time of the visa application. The Tribunal was required to determine whether the applicants met the criteria for the visa, specifically concerning the requirement for an approved nomination for the position.

The Tribunal's reasoning centred on clause 187.233 of the Migration Regulations, which mandates that the position to which the visa application relates must be the subject of an approved nomination. The evidence presented indicated that the initial application for approval of the nomination by Oscar Investments (WA) Pty Ltd T/A The Holt Family Trust had been refused, and although a review was sought, it was subsequently withdrawn. The Tribunal noted that it had no discretion to waive this mandatory requirement, even in light of the applicants' submissions regarding their difficult circumstances, including unfair termination of employment, the impact of the COVID-19 pandemic on travel, and the potential hardship to their Australian citizen son and extended family.

Consequently, the Tribunal affirmed the decision not to grant the applicants the Regional Employer Nomination (Permanent) (Class RN) visas. The Tribunal acknowledged the applicants' challenging situation, including the potential bar under section 48 of the Act preventing further applications in Australia, and the complexities arising from international travel restrictions. However, the non-discretionary nature of the nomination approval requirement meant that the visa criteria could not be met.