Roy (Migration)

The Administrative Appeals Tribunal considered the case of Roy (Migration), concerning a refusal of a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), direct entry stream. The applicant had not worked in the nominated position, and the possibility of future employment with the sponsor was raised, alongside the impact of COVID-19 travel restrictions. The Tribunal was tasked with determining whether the applicant met the requirements of clause 187.233(3) of the Migration Regulations.

The primary legal issue before the Tribunal was whether the nomination of the position met the criteria set out in clause 187.233, specifically concerning the approval of the nomination and the applicant's relationship to the nominated position. This involved assessing whether the nominated position was located in regional Australia, was the subject of an approved nomination, and if the applicant was identified in relation to that position, as required for nominations made after 1 July 2017. The Tribunal also had to consider whether the employer who made the nomination was the prospective employer, if the nomination had been approved and not withdrawn, and if there was any adverse information concerning the nominator or associated persons. Furthermore, the Tribunal needed to ascertain if the position remained available to the applicant and if the visa application was lodged within six months of the nomination's approval.

The Tribunal applied section 359AA of the Migration Act 1958 (Cth), which outlines the process for informing an applicant of information that may lead to the affirmation of a decision and providing an opportunity to respond. The Tribunal found that the applicant had not worked in the nominated position, which was a critical factor. While the applicant had been granted an extension of time to respond to a section 359AA notice, the core issue remained the applicant's failure to have commenced employment in the nominated role. The Tribunal concluded that the applicant did not meet the requirements of clause 187.233(3) because the nominated position was not demonstrably available to the applicant in the manner contemplated by the regulations, particularly given the applicant's lack of prior engagement in the role.

Consequently, the Tribunal affirmed the decision under review.