Sushma Paswan (Migration)

This matter concerned an application for review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant sought to have the decision of the Minister's delegate, which refused the visa, set aside. The Tribunal was required to consider whether the applicant met the criteria for the visa, specifically in relation to the nominated position and the approval of the nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233 of the Migration Regulations 1994, which governs the nomination requirements for the Direct Entry stream of the Subclass 187 visa. This clause requires, among other things, that the nominated position be approved and that the nomination has not been withdrawn. The Tribunal also considered, in the alternative, whether the applicant met the criteria for the Temporary Residence stream (clause 187.223) or the Agreement stream (clause 187.242), and whether any family members qualified based on the primary applicant's eligibility.

The Tribunal affirmed the delegate's decision to refuse the visa. The delegate had refused the nomination application lodged by Annilax Enterprises P/L on 17 May 2018. As the nomination was refused, the delegate was not satisfied that the applicant met clause 187.233(3) or the broader requirements of clause 187.233. Furthermore, the nomination did not meet the requirements for assessment under regulation 5.19(3), meaning the applicant did not satisfy clause 187.223 for the Temporary Residence stream. The position was also not nominated under a labour agreement, precluding eligibility under clause 187.242 for the Agreement stream. As none of the primary criteria were met, family members could not qualify based on their relationship to the applicant. The Tribunal noted that the applicant's nominating employer had subsequently withdrawn their merits review application, and advised the applicant that this withdrawal was relevant as clause 187.233(3) requires an approved nomination.

The Tribunal concluded that the applicant had not met the requirements for the Subclass 187 visa in the Direct Entry stream, nor had they satisfied the criteria for the other streams. Consequently, the Tribunal affirmed the decision not to grant the visa.