Su (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, in the Direct Entry stream. The applicant sought to have a decision of the Department of Home Affairs affirmed by the Tribunal. The core of the dispute revolved around the requirement for an approved nomination for the visa to be granted.

The legal issue before the Tribunal was whether the applicant satisfied the criteria for the Subclass 187 visa, specifically concerning the necessity of an approved nomination. The Tribunal was required to determine if the applicant's nominated position met the requirements of the relevant regulations, particularly clause 187.233(3) of the Migration Regulations, which mandates an approved nomination.

The Tribunal reasoned that a fundamental requirement for the grant of a Subclass 187 visa is an approved nomination, a matter of fact over which the Tribunal had no discretion. The evidence presented indicated that the nomination application made by South Australia LuHeng Pty Ltd for the applicant's position was refused by the Department of Home Affairs. Although the nominator applied for a review of this decision, the review application was subsequently withdrawn. This withdrawal meant that there was no approved nomination, nor a nomination application under review before the Tribunal, rendering the decision on the nomination final. Consequently, the Tribunal found that the applicant did not meet the essential requirement of having an approved nomination for the visa.

The Tribunal affirmed the decision not to grant the applicant the visa, as the requirements for the Subclass 187 visa in the Direct Entry stream had not been met due to the absence of an approved nomination.