Nagaike (Migration)

This matter concerned an application by Mr Shinya Nagaike for a Regional Sponsored Migration Scheme (subclass 187) visa, specifically under the Direct Entry stream. The dispute arose when a delegate of the Minister for Immigration refused Mr Nagaike's visa application on 28 August 2017, on the basis that clause 187.233 of the relevant regulations was not satisfied. Mr Nagaike subsequently applied to the Administrative Appeals Tribunal for a review of this decision.

The primary legal issue before the Tribunal was whether the nomination of the position for which Mr Nagaike was applying had been approved. Clause 187.233, as applicable, required that the position be the subject of an approved nomination in the Direct Entry stream, located in regional Australia, and that this nomination had not been subsequently withdrawn. Further requirements included that the employer be the nominator, that there be no adverse information known to Immigration, that the position remained available, and that the visa application was made within six months of the nomination approval.

The Tribunal reasoned that the nomination application made by St John’s Catholic College was refused by a delegate of the Minister on 21 July 2017. While a review application was lodged, the Tribunal found it did not have jurisdiction to hear that review. Consequently, there was no approved nomination to which Mr Nagaike's visa application could relate. The Tribunal formally advised Mr Nagaike, pursuant to section 359AA of the Migration Act 1958 (Cth), that because the nomination had been unsuccessful, his visa application could not succeed, as an approved nomination was a mandatory requirement under clause 187.233.

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