Mangisetty (Migration)

This matter concerned an application for review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to satisfy the criteria for this visa. The core of the dispute revolved around the applicant's ability to meet the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994, specifically concerning the nomination of a position. The Tribunal, constituted by Michelle East, was required to determine whether the applicant had met these requirements.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria under clause 187.233, which mandates, among other things, that the position be the subject of an approved nomination and that the employer who made the nomination is the person who will employ the applicant. A critical aspect of this was the requirement for an approved nomination, as the Tribunal had previously found it had no jurisdiction to review the Department of Home Affairs' decision to refuse the nomination. The applicant's submission that his employer's business name had changed, despite continued employment, was also relevant to whether the nomination requirements could still be met.

The Tribunal reasoned that a fundamental requirement for the Subclass 187 visa in the Direct Entry stream is an approved nomination. As the Tribunal had previously determined it lacked jurisdiction to review the refusal of the nomination application, that refusal stood. Consequently, the applicant could not demonstrate that the nomination had been approved, a prerequisite for meeting clause 187.233(3). While the Tribunal expressed sympathy for the applicant's circumstances, including the impact of the COVID-19 pandemic and his positive employment history, it concluded that it had no discretion to grant the visa in the absence of this essential criterion being met.

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