Mann (Migration)

The Administrative Appeals Tribunal considered a decision to refuse to grant Regional Employer Nomination (Permanent) (Class RN) visas to the applicants. The primary applicant's nomination by Devendrakumar Patel ATF Radhe Unit Trust was withdrawn by the Department on 8 March 2019, meaning there was no evidence of an approved nomination at the time of the Tribunal's review. The Tribunal also considered the secondary applicants, finding they did not meet the criteria as family members of a primary applicant who met the visa requirements, nor did they meet the primary criteria in their own right.

The central legal issue before the Tribunal was whether the applicants met the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the nomination of a position for the Direct Entry stream. This clause requires that the position to which the visa application relates must be the same position that was the subject of an approved nomination, and that the applicant must have made a declaration in relation to that specific nomination. The Tribunal also had to consider whether a subsequent nomination, even for the same position by the same employer, could satisfy the criteria, or if the position had to exist at the time of the initial nomination.

The Tribunal reasoned that clause 187.233(1)(b) requires the visa application to be made in relation to the specific nomination in which the applicant was identified and in relation to which the declaration in Schedule 1 was made. Citing case law, the Tribunal held that even a later nomination for the same position by the same employer could not satisfy this requirement, as it would not be the nomination in relation to which the original declaration was made. Furthermore, the Tribunal noted that the position must exist at the time the nomination is submitted for approval. As the nomination in this case had been withdrawn, the primary applicant could not satisfy the criteria.

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