Ferdaous (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), under the direct entry stream. The applicant's nominated position as a cook was the subject of an approved position nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233(3) of the Migration Regulations, which requires that the Minister has approved the nomination. This clause, as applicable, mandates that the nominated position be located in regional Australia, be the subject of an application for approval of a nomination in the Direct Entry stream, and identify the applicant in relation to the position if the nomination was made on or after 1 July 2017. Further requirements include that the nominator is the prospective employer, the nomination has been approved and not withdrawn, there is no adverse information known to Immigration about the nominator or associated persons, the position remains available, and the visa application was lodged within six months of the nomination approval.

The Tribunal noted that the employer's nomination application had been refused, and the subsequent review application by the employer was affirmed by the Tribunal on 13 January 2023. This refusal was based on the finding that the applicant would not be employed full-time for at least two years, due to significant debts to the Australian Taxation Office and uncertain loan arrangements. Consequently, the Tribunal advised the applicant that clause 187.233(3) might not be satisfied due to the lack of an approved employer nomination. The applicant requested an adjournment of two months to prepare another visa application, which the Tribunal declined, distinguishing the request from the circumstances in *Minister for Immigration and Citizenship v Li* where an adjournment was granted for a specific evidentiary purpose. The applicant was given a further 14 days for written submissions, but none were received. An email was later received apologising for leaving the hearing due to Wi-Fi issues, but the Tribunal found that all relevant matters had been canvassed and it was reasonable to proceed to a decision. The Tribunal affirmed the decision under review.