Madis (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision by the Department of Home Affairs not to approve a nomination for a Project Administrator position under the Regional Employer Nomination (Permanent) (Class RN) Subclass 187 visa, Direct Entry stream. The applicant sought review of the Department's decision.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of the Migration Regulations 1994. This clause mandates that the position subject to the visa application must have been the subject of an approved nomination application, made by the prospective employer, and that this nomination must not have been subsequently withdrawn. Further, where the nomination was made on or after 1 July 2017, it must identify the applicant, and there must be no adverse information known to the Department about the nominator or associated persons, or such information must be reasonable to disregard. The position must also remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal noted that on 7 December 2021, it had affirmed the Department's decision not to approve the nomination made by the applicant's nominating employer, The Trustee for Polini Trading Trust. This affirmation meant that the crucial requirement of an approved nomination, as stipulated by cl.187.233(3), had not been met. The Tribunal had previously notified the applicant of this finding and invited comments, pursuant to s359A of the Migration Act 1958, by 22 December 2021. As the applicant failed to provide these comments within the prescribed period and no extension was granted, the Tribunal proceeded to make a decision without further steps, in accordance with s359C and s360(3) of the Act. The Tribunal considered the applicant's opportunity to provide information and the significance of any withheld information before reaching its decision.

The Tribunal concluded that the decision under review should be affirmed.