Talag (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 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant sought to satisfy the criteria for this visa based on a nomination made by Frangipani Gentle Care Group Homes Pty Ltd. The review was heard by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, specifically whether the nomination lodged by the employer had been approved. The Tribunal was required to determine if the applicant could satisfy this criterion given that the employer's nomination had been refused by the Department and the employer had not sought a review of that refusal.

The Tribunal reasoned that clause 187.233(3) mandates that the Minister must have approved the nomination for the visa to be granted. The evidence before the Tribunal clearly indicated that the nomination had been refused and this decision had not been overturned. The Tribunal noted that there is no provision within the legislation to consider the circumstances of the nominating employer's conduct or their failure to pursue a review of the nomination refusal. Consequently, as the essential requirement of an approved nomination was not met, the applicant could not satisfy clause 187.233.

The Tribunal affirmed the decision not to grant the applicant the visa, as the applicant had only sought to meet the criteria for the Direct Entry stream of the Subclass 187 visa and had failed to satisfy the mandatory requirements for that stream.