Syed (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to have the decision of the Department of Home Affairs, which had refused to grant the visa, set aside.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nomination of the position of Café or Restaurant Manager, which was central to the applicant's visa application, had been approved by the Minister and had not been subsequently withdrawn, as required by subclauses 187.233(3) and (4).

The Tribunal reasoned that a crucial prerequisite for the grant of a Subclass 187 visa in the Direct Entry stream is that the nomination of the position must have been approved. The Tribunal noted that a previous decision by the Tribunal (differently constituted) had found it did not have jurisdiction to consider an application for review made by the nominator. This finding meant that the nomination related to the applicant's visa application had not been approved. Consequently, the Tribunal concluded that the applicant had failed to meet the criterion under clause 187.233(3), which mandates ministerial approval of the nomination.

As a result of the applicant failing to satisfy this essential criterion, the Tribunal affirmed the decision not to grant the visa.