Delgado Bautista (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the position of Retail Manager (General). The applicant's employer, LDJD Pty Ltd, had initially made a nomination application for the position. However, this nomination application was refused by a delegate of the Minister, and although LDJD Pty Ltd sought a review of this refusal, the company subsequently withdrew its review application. The Tribunal, presided over by Nicola Findson, was required to determine whether the decision to refuse the visa should be affirmed.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of the Migration Regulations, which mandates that the position to which the visa application relates must be the subject of an approved nomination that has not been subsequently withdrawn. The Tribunal also considered the applicant's submissions regarding the cessation of the nominating employer's operations due to the COVID-19 pandemic and the applicant's current employment with a different company.

The Tribunal reasoned that clause 187.233(3) and (4) of the Migration Regulations are mandatory requirements for the grant of the visa, stipulating that the nomination must be approved and must not have been subsequently withdrawn. As the nomination by LDJD Pty Ltd was refused and the subsequent review application was withdrawn, this essential criterion was not met. The Tribunal acknowledged the difficult circumstances faced by the applicant, including the potential bar under section 48 of the Migration Act and the complexities arising from the COVID-19 pandemic, but concluded that it had no discretion to waive these non-discretionary regulatory requirements.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Regional Employer Nomination (Permanent) (Class RN) visa.