Thorne (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of decisions by the Department of Immigration and Border Protection to refuse approval of a nomination for a Minister of Religion position and to refuse a Subclass 186 (Employer Nomination Scheme) visa. The applicant, Mr William Denton Thorne, was the nominee for the position sponsored by Sydney Church of Christ. The Tribunal affirmed the Department's decision to refuse the nomination, which in turn led to the refusal of Mr Thorne's visa application.

The primary legal issue before the Tribunal was whether the applicant could satisfy the requirements of clause 186.233 of Schedule 2 of the Migration Regulations, specifically concerning the approval of the nominated position. The Tribunal was required to determine if the applicant had provided sufficient evidence to demonstrate that the nomination had been approved and had not been withdrawn, and that all other relevant criteria under clause 186.233 were met.

The Tribunal reasoned that a fundamental requirement for the Subclass 186 visa in the Direct Entry stream is that the nominated position must have been approved by the Minister and not subsequently withdrawn. The evidence before the Tribunal indicated that the Department had refused to approve the nomination, and this decision had been affirmed by the Tribunal itself. Consequently, the Tribunal found that the applicant could not satisfy clause 186.233(3) of the Regulations, which mandates that the Minister has approved the nomination. Despite receiving a substantial submission from the applicant addressing personal and professional circumstances and expressing concerns about the impact of their departure, the Tribunal concluded that these submissions did not overcome the essential criterion that the nomination itself was not approved.

As the applicant failed to meet this essential criterion for the Subclass 186 visa in the Direct Entry stream, the Tribunal affirmed the Department's decision to refuse the visa. The Tribunal noted that while the applicants had requested a referral to the Minister for potential Ministerial Intervention, this was a matter for the applicants to pursue directly, as the Tribunal lacked discretionary power to grant the visa in these circumstances.