Pathan (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Junaid Pathan and other applicants seeking a Subclass 187 (Regional Sponsored Migration Scheme) visa under the Direct Entry stream. The core dispute revolved around the refusal of a nominated position for a Café or Restaurant Manager, which had been affirmed by the Tribunal. The applicants sought an extension of time and lodged a new nomination, but the Tribunal's decision focused on the inapplicability of this new nomination to their current application.

The primary 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This clause mandates that the nominated position must have been the subject of an approved nomination that has not been withdrawn, and that the visa application was made within six months of the nomination's approval. The Tribunal also had to consider whether a new nomination lodged after the refusal of the original nomination could satisfy these criteria for the existing application.

The Tribunal reasoned that for applicants in the Direct Entry stream, clause 187.233 requires an approved nomination that has not been withdrawn. The original nomination made by Ammar Group Pty Ltd had been refused by the Tribunal on 13 April 2018. Consequently, the Tribunal concluded that regulation 187.233(3) was not met, as the essential requirement of an approved nomination was absent. The Tribunal noted that a subsequent, new nomination lodged by the applicants could not be applied retrospectively to satisfy the criteria for the visa application that was already under review and had been refused based on the initial nomination.

Ultimately, the Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas. The Tribunal found that the applicants had failed to meet the mandatory requirements for the Subclass 187 visa in the Direct Entry stream, as the crucial element of an approved nomination was not satisfied.