MANN (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to satisfy the criteria for this visa subclass. The Tribunal, constituted by Karen McNamara, was required to determine whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant's nominated position met the requirements of clause 187.233, specifically concerning an approved nomination. This clause requires, among other things, that the position be the subject of an approved nomination, that the nominating employer is the prospective employer, and that the nomination has not been withdrawn. The Tribunal also considered whether the applicant had responded to invitations to provide comments or attend a hearing.

The Tribunal noted that on 2 August 2021, the nominating employer, Ethinic Cuisines Pty Ltd, had withdrawn their nomination review application, which was accepted by the Tribunal on 9 August 2021. The Tribunal had invited the applicant to comment on this information, which indicated that the nomination relied upon might not have been approved or may have been withdrawn, thus potentially failing to satisfy clause 187.233(3) and (4). The applicant did not respond to this invitation or to a separate invitation to attend a hearing.

As the applicant had not provided any response or comments regarding the withdrawn nomination, and given that the withdrawal of the nomination meant the requirements of clause 187.233 could not be met, the Tribunal affirmed the decision not to grant the visa.