Mainali (Migration)

This matter concerned an appeal by an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant's employer's nomination application had been refused by the Department of Home Affairs, and this refusal was subsequently affirmed on review by the Tribunal. The core dispute revolved around whether the position for which the visa was sought was the subject of an approved nomination.

The Tribunal was required to determine whether the applicant had satisfied the criteria for the Subclass 187 visa in the Direct Entry stream, specifically focusing on whether the nominated position had been approved. Relevant to this determination were several requirements, including that the position must be located in regional Australia, identified in the nomination application, and that the nomination itself must have been approved and not subsequently withdrawn. Further criteria included the employer being the nominator, 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 reasoned that the applicant's employer's nomination application was refused on 2 March 2018, and this refusal was affirmed by the Tribunal on 11 October 2019. As there was no evidence that the position was the subject of an approved nomination, the Tribunal concluded that the applicant had not met the essential criteria for the visa. The applicant's submissions regarding the Department's delay in processing, the perceived lack of follow-up before refusal, and the disparate treatment compared to a colleague were noted but found not to alter the legal requirements for an approved nomination.

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