Bagga (Migration)

This matter concerned an appeal by an applicant for a Subclass 187 (Regional Employer Nomination Scheme) visa, direct entry stream, against the affirmation of a decision to refuse that visa. The applicant had been nominated for a retail manager position by an employer, but this nomination was subsequently refused and that refusal was affirmed. The applicant's circumstances had changed, with the business having closed and the applicant now working for a different employer.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233(3) of the Migration Regulations 1994, which mandates that the Minister has approved the nomination. This clause, as applicable, requires the nominated position to be in regional Australia, to be the subject of an approved nomination that has not been withdrawn, and for the applicant to be identified in relation to the position if the nomination was made on or after 1 July 2017. It also requires the nominator to be the prospective employer, that there is no adverse information about the nominator, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the affirmed refusal of the employer nomination meant there was no approved nomination to satisfy clause 187.233(3). The applicant acknowledged this lack of an approved nomination and explained that the business had closed, rendering the original nomination invalid. The Tribunal noted, consistent with case law such as *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, that the visa application scheme is intended as a "once off" process, meaning a new employer nomination cannot be linked to an existing visa application.

Consequently, the Tribunal concluded that the applicant did not meet the essential criterion of having an approved employer nomination. Therefore, the decision under review, which affirmed the refusal of the visa application, was affirmed.