Sandhu (Migration)

This matter concerned an application for review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to have the decision set aside and remitted to the Department of Home Affairs for reconsideration. The Tribunal was required to determine whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated position met the criteria stipulated in clause 187.233, specifically concerning the approval of the nomination. This clause requires, among other things, that the position be located in regional Australia, that the employer be the nominator, that the nomination has been approved and not withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, that the position remains available, and that the visa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 made within six months of the nomination approval.

The Tribunal found that the nomination application lodged by The Trustee for Philip Yakinthou Family Trust had not been approved at the time of the Tribunal's decision. While the applicant and their employer expressed sympathy for the situation and highlighted the applicant's importance to the business, this did not alter the regulatory requirements. The Tribunal noted that the nomination refusal was not under review, and the parties acknowledged this fact. Consequently, as the applicant failed to satisfy the essential criterion of an approved nomination, they did not meet the requirements for the Subclass 187 visa in the Direct Entry stream. The Tribunal also affirmed the decision not to grant the second applicant a visa, as they did not meet the secondary criteria for family members and had not demonstrated they met the primary criteria in their own right.