Den Hertog (Migration)

The Administrative Appeals Tribunal considered the case of Den Hertog, an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The central dispute concerned whether the applicant met the criteria for the visa, specifically regarding the validity of the employer's nomination at the time of the decision, after the sponsor had withdrawn their nomination due to insolvency.

The Tribunal was required to determine whether the applicant's visa application satisfied clause 187.233 of the Migration Regulations 1994. This involved assessing whether the nominated position was the subject of an approved nomination that had not been subsequently withdrawn, whether the employer who made the nomination was the prospective employer, and whether the position remained available to the applicant. The Tribunal also considered the implications of the sponsor's withdrawal of the nomination and the applicant's subsequent employment.

The Tribunal reasoned that clause 187.233 requires a factual assessment of whether an employer nomination had been made and approved, and crucially, that it had not been subsequently withdrawn. The Tribunal noted that the nomination linked to the applicant's visa application had been withdrawn by the sponsor, Choice Industrial Training Pty Ltd, on 28 April 2016. Applying the principles from *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, the Tribunal held that a withdrawn nomination could not be relied upon to satisfy the visa criteria. The Tribunal concluded that the applicant had not met the requirements of clause 187.233 because the nomination was no longer in place at the time of the decision.

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