Hussain (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review concerning a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought this visa for the position of Customer Service Manager. The core of the dispute revolved around whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994, particularly concerning the approval of the nomination for the position.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the criteria outlined in clause 187.233 of the Regulations. This clause mandates, among other things, 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 identify the applicant. Crucially, it requires that the nomination has been approved and not subsequently withdrawn, and that the visa application is made within six months of the nomination's approval. The Tribunal also had to consider whether there was any adverse information concerning the nominator that could not be disregarded.

The Tribunal's reasoning centred on the fact that the nomination application for the Customer Service Manager position had been refused by the Department and this refusal was affirmed by the Tribunal on 30 November 2023. As a consequence of this prior decision, the nomination was not approved. The Tribunal informed the applicants of this development and invited them to comment, as per section 359A of the Migration Act 1958. Given that clause 187.233(3) requires an approved nomination, and the nomination had been refused, the Tribunal concluded that this essential criterion was not met. The Tribunal also noted that a secondary applicant, Ms Faiza Batool, did not meet the secondary criteria for a family unit member and had not demonstrated she could meet the primary criteria in her own right.

Ultimately, the Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to the applicants.