Moutou (Migration)

The Administrative Appeals Tribunal considered the case of Mr Moutou, who sought review of a decision to refuse his application for a Regional Employer Nomination (Permanent) visa (Subclass 187) under the Direct Entry stream. The nominated position was for a hairdresser. The primary decision maker had refused the visa application, and the Tribunal was tasked with determining whether the Minister had approved the relevant nomination for the purposes of clause 187.233 of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.233 of the Regulations. This clause mandates that the nominated position must have been the subject of an approved nomination application, that the employer who made the nomination must be the one employing the applicant, and that the nomination must not have been withdrawn. Furthermore, the clause requires that there be no adverse information about the nominator or associated persons, that the position remains available, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that the nomination linked to Mr Moutou's visa application, lodged by Barima Enterprise Pty Ltd, was not approved by the Department at first instance. The Tribunal had previously affirmed the decision to refuse the employer nomination application. Relying on the Full Federal Court's decision in *Singh's case*, the Tribunal held that a nomination in respect of the same position by the same employer cannot be used to satisfy the Schedule 2 criteria in clause 187.233 if the original nomination was refused. The Court in *Singh's case* clarified that clause 187.233 refers to a factual event, and if a nomination is refused, an applicant will not meet the criteria unless the refusal decision is set aside on review.

Consequently, the Tribunal concluded that the decision under review should be affirmed.