SHERPA (Migration)

This matter concerned an application for Regional Employer Nomination (Permanent) (Class RN) visas, subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, before the Administrative Appeals Tribunal. The primary applicant sought a visa as a Café or Restaurant Manager, supported by a nomination from CH & CJ Pty Ltd. A second applicant, presumably a family member, also sought a visa.

The central legal issue before the Tribunal was whether the primary applicant met the requirements of clause 187.233 of the Migration Regulations 1994, which governs the nomination of a position for the Direct Entry stream. This clause requires, among other things, that the position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information known to the Department, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that clause 187.233 was not met because, at the time of the delegate's decision, the applicant did not have an approved nomination from her nominating employer, CH & CJ Pty Ltd, nor was there a pending nomination refusal review. The Tribunal noted that the failure of the nomination was outside the applicant's control and acknowledged the applicants' long period of residence in Australia and their current employment with new employers. However, the Tribunal concluded that it had no power to waive the requirements of clause 187.233, even in compelling or compassionate circumstances, as the provision does not permit such discretion. The second applicant also failed to meet the secondary visa criteria as a family member and did not meet the primary criteria in his own right.

Consequently, the Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to either applicant.