Ngoap (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Temporary Residence Transition stream, by Mr. Ngoap. The applicant's nomination was initially refused by the Department of Home Affairs, and this refusal was subsequently affirmed by the Administrative Appeals Tribunal (AAT). The applicant sought review of the Tribunal's decision.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 187 visa in the Temporary Residence Transition stream, specifically clause 187.223 of the Migration Regulations 1994, which requires an approved nomination. The Tribunal also considered the applicant's request for referral to the Minister for Ministerial Intervention under section 351 of the Migration Act 1958, based on alleged unique and exceptional circumstances arising from administrative delays and business restructuring affecting his employer.

The Tribunal reasoned that at the time the Department made its decision, the applicant's nomination had been refused, and this refusal was later affirmed by the Tribunal. Furthermore, legislative amendments made in March 2018 meant that a nomination by a new employer would not satisfy the criteria for a Subclass 187 visa if the applicant was originally nominated by a different employer. Consequently, the applicant could not satisfy clause 187.223 as he did not have an approved nomination from his original nominating employer. The Tribunal also found that the secondary applicants, who were family members, did not meet the secondary visa criteria. Despite the applicant's arguments regarding the relationship between associated entities and the impact of delays, the Tribunal concluded that the primary criteria for the visa were not met. However, the Tribunal was satisfied that the cumulative factors presented by the applicant constituted unique and exceptional circumstances warranting consideration by the Minister, and therefore referred the case for Ministerial Intervention.

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