BASNET (Migration)

This matter concerned an application for review by Mr Basnet of a decision not to grant him a Regional Employer Nomination (Permanent) (Class RN) visa, specifically under the Subclass 187 Regional Sponsored Migration Scheme, Direct Entry stream. The dispute centred on whether the relevant nomination for the position of Retail Manager, made by the Whitten Trust, had been approved by the Department.

The primary legal issue before the Tribunal was to determine whether the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994 had been met. This clause mandates that the position to which the visa application relates must have been the subject of an approved nomination, and that the visa applicant must have made a declaration in relation to that specific nomination. The Tribunal was required to ascertain if the nomination made by the Whitten Trust for Mr Basnet was an approved nomination for the purposes of this clause.

The Tribunal reasoned that for a Direct Entry stream application under Subclass 187, the nomination must have been approved and not subsequently withdrawn. It noted that the Department had refused the application for approval of the nominated position. Relying on the Full Federal Court's decision in *Singh v MIBP*, the Tribunal held that clause 187.233 refers to a factual event, meaning the specific nomination in relation to which the applicant made their declaration. The Court had previously determined that even a new nomination for the same position by the same employer could not satisfy the criteria if it was not the nomination in relation to which the declaration was made. The Tribunal concluded that as the nomination had been refused, the requirements of clause 187.233 were not met, and it had no discretion to depart from this legal position.

Consequently, the Tribunal affirmed the decision not to grant Mr Basnet the visa, as the essential criterion of an approved nomination had not been satisfied.