GILL (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a citizen of India. The applicant had been nominated by a business that operated Caltex service stations. The nominator had proposed to sponsor the applicant for relocation to a site in Wodonga, Victoria, while the applicant was studying and working in Sydney. The nominator subsequently returned its service stations to direct operation by Caltex and failed to inform the Department of this change. The nomination was then formally withdrawn by the nominator. The delegate refused the visa application because the Minister had not approved the nomination, and the applicant subsequently sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination that had not been subsequently withdrawn, as required by the regulations for a Subclass 187 visa in the Direct Entry stream. Specifically, the Tribunal had to determine if the applicant met the criteria outlined in regulation 187.233 of the Migration Regulations 1994, which included requirements that the nominator be the prospective employer, that the nomination had been approved and not withdrawn, and that the position remained available.

The Tribunal reasoned that a fundamental requirement for the visa was an approved nomination that had not been withdrawn. Despite the applicant's submissions that he had continued employment and received new offers, the Tribunal found that the nominator had withdrawn its nomination. The Tribunal noted that it had no discretion in the application of these regulations and that the applicant's continued pursuit of the visa application after being informed of the withdrawn nomination was insufficient to overcome this regulatory hurdle. The Tribunal concluded that as the essential criteria regarding the nomination had not been met, it could not grant the visa.

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