Mand (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 187 Regional Employer Nomination (Permanent) (Class RN) visa in the Direct Entry stream. The dispute arose because the applicant's original nominating employer, Mani Farming Services Pty Ltd, had its nomination refused on 15 April 2019, and there was no evidence of a subsequent approval. The Tribunal was tasked with determining whether the applicant met the criteria for this visa subclass, specifically clause 187.233.

The central legal issue was whether the applicant could satisfy the requirements of clause 187.233 of the Migration Regulations 1994, which mandates that the position to which the visa application relates must be the same position that was the subject of an approved nomination, and in relation to which a specific declaration was made in the visa application. The Tribunal also had to consider whether a subsequent nomination, even for the same position by the same employer, could satisfy this criterion, or if the position must be available at the time the nomination is submitted.

The Tribunal reasoned that clause 187.233 requires a direct link between the nominated position and the position declared in the visa application. It relied on established case law, including *Hasan v MIBP* and *Singh v MIBP*, which interpret similar provisions to mean that a new nomination, even for the same position, cannot satisfy the requirement if it was not the nomination in relation to which the applicant made their declaration. The Tribunal noted that Departmental policy also reflects this interpretation. Furthermore, the Tribunal highlighted that the position must exist at the time the employer nomination is submitted. As the applicant's original nomination was refused and no subsequent approved nomination was presented, the applicant failed to meet this essential criterion.

Consequently, the Tribunal affirmed the decision not to grant the applicant the visa, as the requirements for the Direct Entry stream of the Subclass 187 visa had not been met.