Wojtowicz (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Direct Entry stream. The applicant's eligibility for this visa was contingent on an approved nomination by Polish Cleaning Pty Ltd. The core dispute revolved around whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the approval of the employer's nomination.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 187.233, which outlines the criteria for a nominated position in the Direct Entry stream of the Subclass 187 visa. This clause requires, among other things, that the nomination be approved by the Minister, not subsequently withdrawn, and that the position remains available to the applicant. Crucially, the Tribunal also had to consider the impact of a refusal to approve the nomination on the applicant's visa application.

The Tribunal reasoned that a fundamental requirement for the applicant to meet clause 187.233 was the existence of an approved nomination. The Tribunal had previously affirmed a decision refusing the approval of the nomination made by Polish Cleaning Pty Ltd in respect of the applicant. As the nomination had been refused, the Tribunal concluded that the applicant could not satisfy subclause 187.233(3), and therefore, the overall criterion 187.233 was not met. The Tribunal also noted that it had provided the applicant with an opportunity to comment on the proposed affirmation of the decision, which was based on the refused nomination.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, because the essential requirement of an approved nomination had not been satisfied.