Li (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Direct Entry stream, for the position of Massage Therapist. The applicant sought review of a decision to refuse the visa. The Tribunal, constituted by Jade Murphy, was required to determine whether the applicant had satisfied the criteria for the visa.

The central legal issue before the Tribunal was whether the nominated position was the subject of an approved nomination, as required by clause 187.233 of the Migration Regulations 1994. This clause, as applicable, stipulated several conditions, including that the nomination must have been approved and not subsequently withdrawn, and that the applicant must be identified in the nomination if made after 1 July 2017. The Tribunal also considered whether there was adverse information known to Immigration, whether the position remained available, and the timeframe between nomination approval and visa application.

The Tribunal found that the nomination lodged by PYU Marion Pty Ltd was refused by a delegate of the Minister on 27 May 2019. Although PYU Marion Pty Ltd sought review of this decision, the Tribunal affirmed the delegate's refusal on 22 August 2022. Consequently, the nominator's application for the nominated position had not been approved. As the applicant did not respond to the Tribunal's invitation to comment on this critical issue, the Tribunal concluded that the relevant nomination had not been approved, and therefore, clause 187.233 was not met.

Given that the applicant had only sought to satisfy the criteria for the Subclass 187 visa in the Direct Entry stream and had failed to meet the essential requirements, the Tribunal affirmed the decision under review. The Tribunal ordered that the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa be affirmed.