Jattana (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a Retail Manager. The applicant sought review of a decision not to grant the visa. The Tribunal, constituted by C. Packer, was required to determine whether the applicant met the criteria for the visa, specifically clause 187.233 of the Migration Regulations 1994.

The primary legal issue was whether the applicant had satisfied the requirements of clause 187.233, which mandates that the position to which the visa application relates must be the subject of an approved nomination. This includes requirements that the nominator is the prospective employer, the nomination has been approved and not withdrawn, there is no adverse information, the position remains available, and the visa application was made within six months of the nomination approval. The Tribunal considered the fact that the nominator, THANKU 13 PTY LTD, had its nomination application rejected on 4 April 2019, and no appeal was lodged against this refusal.

The Tribunal reasoned that a prerequisite for meeting clause 187.233 is an approved nomination. As the nomination in this case was refused and not appealed, there was no approved nomination upon which the visa application could be based. The Tribunal noted that current authority, citing *Hasan v MIBP* [2016] FCCA 1049 and *Singh v MIBP* [2017] FCAFC 105, indicates that a refused nomination cannot be relied upon to satisfy the Schedule 2 criteria for this visa stream. Consequently, the Tribunal found that clause 187.233(3) was not met.

The Tribunal affirmed the decision not to grant the applicant the visa, as the applicant had only sought to satisfy the criteria for the Direct Entry stream and had failed to meet the essential requirements for that stream.