Mazharuddin (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Mazharuddin concerning his application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the direct entry stream. The dispute arose because the nomination application for the position of Web Developer, made by BURCH GROVE GROUP PTY LTD, was refused by a delegate of the Minister on 20 May 2020, and no application for review of this refusal was made by the nominator. Mr. Mazharuddin was currently working for a different employer and had personal circumstances involving a newborn child and his wife's health.

The primary legal issue before the Tribunal was whether Mr. Mazharuddin met the essential criteria for the Subclass 187 visa in the direct entry stream, specifically concerning the requirement for an approved nomination. The Tribunal was required to determine if the refusal of the nominator's application, without a subsequent review, meant that the criterion of an "approved nomination" could not be satisfied. This also involved considering whether a later nomination by a different employer, or even a later nomination by the same employer for the same position, could satisfy the Schedule 2 criteria.

The Tribunal reasoned that clause 187.233 of the Migration Regulations, as applicable, mandates that the position to which the visa application relates must be the subject of an approved nomination. The Tribunal noted that the nominator's application for approval of the Web Developer position was refused and that no review of this refusal was sought. Consequently, there was no approved nomination in place that concerned Mr. Mazharuddin. The Tribunal relied on previous authority, including *Hasan v MIBP* [2016] FCCA 1049 and *Singh v MIBP* [2017] FCAFC 105, which established that a refused nomination cannot be relied upon to meet the visa criteria unless a review of that decision is pending. As this essential criterion was not met, the Tribunal concluded that the decision under review must be affirmed.

The Tribunal affirmed the decision not to grant Mr. Mazharuddin the Regional Employer Nomination (Permanent) (Class RN) visa.