Dhaliwal (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought review of a decision to refuse the visa. The Tribunal was required to determine whether the applicant met the criteria for the grant of the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233 of the Migration Regulations 1994, which sets out the requirements for a Subclass 187 visa in the Direct Entry stream. This clause mandates, among other things, that the nominated position must be located in regional Australia, the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department about the nominator or associated persons (or such information must be disregarded), the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that a critical prerequisite for the Subclass 187 visa was the approval of the employer's nomination for the position. The Tribunal noted that it had previously affirmed a decision refusing the approval of the nomination for the position of Retail Manager (ANZSCO 142111) on 7 September 2020. The Tribunal informed the applicant at the hearing that this refusal of the nomination would be a reason, or part of a reason, for affirming the visa refusal, as without an approved nomination, the applicant could not satisfy clause 187.233(3) of the Regulations.

Consequently, as the essential criteria for the Subclass 187 visa in the Direct Entry stream, specifically the requirement for an approved nomination, had not been met, the Tribunal affirmed the decision not to grant the applicant the visa.