PETROCCO (Migration)

This matter concerned an appeal by an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant's employer, Gothic Downs Pty Ltd, had its nomination of the applicant refused by the Department on 21 December 2015. Despite the applicant seeking review of this decision with the Tribunal, the Tribunal affirmed the refusal of the nomination on 8 November 2018. The applicant then sought review of the visa refusal.

The primary legal issue before the Tribunal was whether the applicant could satisfy the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the nominated position. This clause requires that the position to which the visa application relates must be the same position that was the subject of an approved employer nomination, and in relation to which the applicant made a declaration in their visa application. The Tribunal also considered whether a subsequent nomination, even by the same employer for the same position, could satisfy this criterion.

The Tribunal reasoned that a fundamental requirement for the Direct Entry stream is that the visa application must relate to the specific position that was the subject of the approved nomination and the applicant's declaration. As the original nomination for the applicant's position had been refused and affirmed on review, and no subsequent nomination had been lodged by the employer, this requirement could not be met. The Tribunal relied on existing authority, including *Hasan v MIBP* and *Singh v MIBP*, which established that a later nomination, even for the same position by the same employer, would not satisfy the criterion because it would not be the nomination in relation to which the applicant made the declaration in their visa application.

Consequently, the Tribunal concluded that the applicant had failed to meet the essential criteria for the Subclass 187 visa in the Direct Entry stream. The Tribunal affirmed the decision not to grant the applicant the visa.