1908053 (Migration)

This matter concerned a review application before the Tribunal regarding a Subclass 187 (Regional Sponsored Migration Scheme) visa, Temporary Residence Transition stream. The applicant was a Metal Fabricator who had been the subject of an approved nomination by their former employer, [Business 1]. However, the nomination was refused on 14 January 2019, and although [Business 1] sought review of this decision, that review application was subsequently withdrawn by the applicant's agent. The applicant alleged exploitative conduct by their former employer.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.223 of the Migration Regulations 1994, specifically concerning the requirement for an approved nomination. The Tribunal was required to determine if the applicant was the subject of an approved nomination that had not been subsequently withdrawn, and if the position nominated was still available to the applicant.

The Tribunal reasoned that clause 187.223 requires the position to which the visa application relates to be the subject of an approved nomination that has not been withdrawn. As the nomination by [Business 1] was refused and the subsequent review application was withdrawn, the Tribunal found that the applicant was not the subject of an approved nomination. This conclusion was supported by case law, including *Hasan v MIBP* and *Singh v MIBP*, which established that a later nomination, even by the same employer for the same position, could not satisfy the criteria if it was not the nomination in relation to which the applicant made their declaration in the visa application. The Tribunal noted that the position must exist at the time the nomination is submitted for approval.

The Tribunal concluded that the applicant did not satisfy clause 187.223 and therefore did not meet the requirements for the visa. Consequently, the Tribunal affirmed the delegate's decision.