Tran (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Tran (Migration), involving visa applicants seeking Regional Employer Nomination (Permanent) (Class RN) visas, specifically under the Temporary Residence Transition stream of the Subclass 187 (Regional Sponsored Migration Scheme) visa. The dispute centred on whether the applicants met the eligibility criteria for these visas, particularly concerning the nomination of a position.

The primary legal issue before the Tribunal was whether the applicants satisfied the requirements of clause 187.223 of the Migration Regulations 1994. This clause mandates, among other things, that the position to which the application relates must be the subject of an approved nomination, that the applicant must have been identified in the nomination as a relevant visa holder, and that the nomination must not have been subsequently withdrawn. The Tribunal also had to consider whether the other named applicants met the criteria for being members of the family unit of a primary visa holder.

The Tribunal reasoned that a crucial requirement for the Temporary Residence Transition stream of the Subclass 187 visa is an approved nomination for the position. Despite evidence that the nominated position was located in regional Western Australia and was still available, the Tribunal noted that it had previously affirmed a decision refusing the nomination under regulation 5.19 in a related AAT case. The Tribunal concluded that without an approved nomination, the applicants could not satisfy clause 187.223(2), which is an essential requirement for the grant of the visa. Furthermore, the Tribunal found that the other named applicants did not satisfy clause 187.311 as they were not members of the family unit of a person who held a Subclass 187 visa granted on the basis of satisfying the primary criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.