COOPER (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Temporary Residence Transition stream. The applicant sought review of a decision not to grant the visa. The Tribunal was required to determine whether the applicant satisfied clause 187.223 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nomination of the applicant's position by Emirates Hotels (Australia) Pty Ltd had been approved and had not subsequently been withdrawn, as required by clause 187.223(3) and (4). The Tribunal also considered the implications of the applicant's failure to respond to a notice issued under section 359A of the Migration Act 1958.

The Tribunal noted that the nomination application by Emirates Hotels (Australia) Pty Ltd had been refused by the Department on 7 February 2018. Subsequently, Emirates Hotels (Australia) Pty Ltd sought to withdraw its application for review of this refusal, which the Tribunal accepted on 30 August 2018. The Tribunal had notified the applicant of this withdrawal and invited comments, but no response was received within the prescribed time. Consequently, the Tribunal applied section 359C(2) of the Act, allowing it to make a decision without further action to obtain the applicant's comments, and the applicant lost the entitlement to appear before the Tribunal under section 360(3). As there was no approved nomination before the Tribunal, clause 187.223(3) was not met.

The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, as the requirements for the visa, specifically the approved and un-withdrawn nomination, had not been satisfied.