KHAN (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant, a citizen of Pakistan, sought to have a decision of the Department of Home Affairs affirmed by the Administrative Appeals Tribunal. The applicant had been working in Australia since 2009, initially as a student, and later obtained a 457 visa as a pastry cook. He commenced employment with Mughal Brothers Pty Ltd (Mughal) in August 2017 with the intention of being sponsored for the Subclass 187 visa. Mughal lodged a nomination application on 31 August 2016, which was subsequently withdrawn by the nominator on 14 December 2017. The applicant was not informed of this withdrawal, and his visa application proceeded. The delegate refused to grant the visa on the basis that the nomination application had not been approved and had been withdrawn.

The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for a Subclass 187 visa in the Direct Entry stream, specifically whether he was the subject of an approved nomination that had not been subsequently withdrawn. The Tribunal also considered the applicant's request for a postponement of the hearing due to alleged stress and anxiety, supported by a medical certificate. The applicant's evidence indicated that he was asked to pay $20,000 for the nomination to proceed and that he was unaware of the withdrawal because he had not been consulted by his employer.

The Tribunal found that the applicant had only sought to satisfy the criteria for the Direct Entry stream of the Subclass 187 visa. A key requirement for this stream, as set out in clause 187.233 of Schedule 2 to the Regulations, is that the nomination must have been approved and not subsequently withdrawn. The evidence clearly showed that Mughal's nomination application was withdrawn on 14 December 2017. Despite the applicant's assertion that he was unaware of the withdrawal and believed the nomination was still proceeding, the fact of the withdrawal was determinative. The Tribunal noted that the applicant's request for postponement was received on the morning of the hearing and was accompanied by a medical certificate stating he was unable to attend his court hearing for the period of 19 to 20 February 2019. However, this did not alter the fundamental failure to meet the nomination criteria.

The Tribunal affirmed the decision of the Department not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa. The applicant failed to meet the essential criteria for the visa in the Direct Entry stream, specifically the requirement for an approved and unwithdrawn nomination.