Penuela Bernal (Migration)

The Administrative Appeals Tribunal considered the case of Penuela Bernal (Migration), involving an applicant seeking a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the direct entry stream. The dispute centred on the applicant's eligibility for the visa, which was contingent on an approved position nomination. The nominator, Barry Scott Signs Pty Ltd, had applied for approval of a Screen Printer position with the applicant as the nominee.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of the Migration Regulations, specifically concerning the approval of the nominated position. This clause mandates that the position must be located in regional Australia, identified in the nomination application, and that the nomination itself must have been approved and not subsequently withdrawn. Further requirements include that the nominator is the prospective employer, that there is no adverse information known to the Department 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's reasoning focused on the status of the nomination application. Records indicated that the nomination application was lodged on 10 September 2017 and subsequently refused by the Department of Home Affairs on 11 May 2019. The nominator sought review of this refusal, and on 20 September 2022, the Tribunal affirmed the decision to refuse the nomination. The Tribunal then notified the applicants, pursuant to section 359A of the Migration Act 1958, that it intended to affirm the visa decision based on the fact that the nomination had not been approved, a prerequisite for meeting clause 187.233(3). The applicants were invited to comment on this information but provided no response by the deadline.

Consequently, the Tribunal concluded that the applicants did not meet the criteria for the visa, as the essential requirement of an approved nomination was not satisfied. The Tribunal affirmed the decision under review, meaning the visa application was refused.