Ng (Migration)

The Administrative Appeals Tribunal considered a review application concerning a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a Fashion Designer. The applicant's nominating employer, Witty Swiftly Pty Ltd, had its nomination application refused, a decision affirmed by the Tribunal and subsequently by the Federal Circuit Court. The Tribunal was tasked with determining whether the applicant met the requirements for the visa, particularly in light of the refused nomination.

The primary legal issue before the Tribunal was whether the applicant was subject to an approved nomination as required by clause 187.233 of the Migration Regulations. This clause mandates that the position be the subject of an approved nomination application in the Direct Entry stream, located in regional Australia, made by the prospective employer, and that the nomination has not been withdrawn. It also requires that the position remains available to the applicant and that the visa application was made within six months of the nomination approval. The Tribunal also had to consider the applicant's request to defer the decision pending the finalisation of a Federal Court judicial review concerning the nomination refusal.

The Tribunal reasoned that the applicant had been on notice since April 2014 that they did not meet the requirements of clause 187.233 due to the refused nomination. Despite being invited to comment on this adverse information and the dismissal of the employer's appeal by the Federal Circuit Court, the applicants provided no evidence to satisfy the nomination requirement. The Tribunal considered relevant case law, including *Huo v Minister for Immigration and Multicultural Affairs* and *Minister for Immigration and Citizenship v Li*, which establish that the Tribunal is not obliged to indefinitely defer its decision-making processes. The Tribunal found the request for an adjournment to be an application to adjourn indefinitely, given the uncertainty surrounding the Federal Court proceedings. Consequently, the Tribunal concluded that the decision under review should be affirmed.