LEE (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Donggil Lee, who sought review of a decision not to grant him a Regional Employer Nomination (Permanent) (Class RN) visa, specifically under the Subclass 187 Regional Sponsored Migration Scheme, Direct Entry stream. The core dispute revolved around whether the applicant met the criteria for this visa, particularly concerning an approved employer nomination.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233(3) of the Migration Regulations 1994, which requires that the Minister has approved the nomination for the position. This clause, as applicable, necessitates that the position be the subject of an approved nomination in regional Australia, that the nominator is the intended employer, and that the nomination has not been withdrawn. Additional requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal affirmed the decision to refuse the visa because the employer nomination had not been approved. The nominator had applied for review of the delegate's refusal to approve the nomination, and the Tribunal had affirmed that refusal on 20 May 2020, finding the nominator failed to satisfy subregulation 5.19(4). Subsequently, the applicant was invited to comment on this development, but no response was received. Consequently, the Tribunal concluded that there was no approved nomination to satisfy clause 187.233(3), meaning the applicant did not meet a crucial requirement for the visa grant.

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