SINGH (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant's employer, HRS ACT Australia Pty Ltd, had lodged a nomination for a hairdresser position, in which the applicant was identified. The core dispute revolved around whether this nomination had been approved, as required by the relevant migration regulations.

The Tribunal was required to determine if the applicant met the criteria set out in clause 187.233 of the Migration Regulations 1994. Specifically, the Tribunal had to ascertain whether the nomination for the position had been approved by the Minister, as stipulated in clause 187.233(3). The applicant's visa application was predicated on this approved nomination, and the Tribunal needed to assess if this fundamental requirement had been satisfied.

The Tribunal reasoned that the evidence before it indicated that the nomination application lodged by HRS ACT Australia Pty Ltd had been refused by the Department. There was no evidence presented to suggest that this refusal had been set aside or was under reconsideration. The Tribunal explained to the applicant that it had no discretion to consider mitigating circumstances, such as the applicant's long-term residence in Australia, family ties, or the difficulties of returning to their home country. The Tribunal's role was to apply the law as it stood, and as the nomination had not been approved, the applicant did not meet the requirements of clause 187.233(3). Consequently, the Tribunal affirmed the decision not to grant the visa to the applicant and, by extension, to any secondary applicants who applied as members of the applicant's family unit.