BHASIN (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the position of Cook. The applicant sought to satisfy the criteria under clause 187.233 of the Migration Regulations. The Tribunal was required to determine whether the applicant met these criteria, particularly concerning the nomination of the position and the applicant's subsequent employment.

The central legal issue was whether the applicant had satisfied the requirements of clause 187.233, which mandates, among other things, that the nominated position must be the subject of an approved nomination, that the nominator must be the prospective employer, and that the nomination must not have been subsequently withdrawn. The Tribunal also considered whether the position remained available to the applicant and the timeframe for the visa application relative to the nomination approval.

The Tribunal found that while a declaration for the nominated position of Cook had been made and the prospective employer identified, the nomination itself was refused by the Department on 10 April 2018. Although the nominating employer appealed this decision, they subsequently withdrew their application for review on 10 February 2020, which the Tribunal accepted on 13 February 2020. Consequently, the refusal decision stood. The Tribunal also noted the applicant's evidence that the restaurant had ceased trading in August 2018. As the requirements for the Direct Entry stream, specifically regarding an approved and un-withdrawn nomination, were not met, the Tribunal affirmed the decision under review.