Priyanka (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, by Mrs Priyanka. The applicant sought to have a decision of the Tribunal affirmed, which had affirmed the decision not to grant the visa. The primary dispute revolved around whether the applicant met the requirements of clause 187.233 of the Migration Regulations.

The central legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233, specifically concerning an approved nomination for the position. This clause mandates that the position must be the subject of an approved nomination application in the Direct Entry stream, located in regional Australia, and that the applicant must be identified in relation to that position if the nomination was made on or after 1 July 2017. Further requirements include that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration, the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal noted that at the hearing, the nominator failed to attend, and the applicant indicated that the nominator had sold the business without informing her and that she was no longer employed by the original nominator. While the applicant stated the new owner was willing to employ her, the Tribunal explained that the visa application was tied to the original nomination and not transferable to a new employer. Crucially, the Tribunal found there was no evidence before it to suggest that the applicant's visa application was subject to a nomination that had been approved and not subsequently withdrawn, a fundamental requirement for the visa.

Consequently, as the applicant failed to meet the essential criteria for the Subclass 187 visa in the Direct Entry stream, specifically the requirement of an approved and un-withdrawn nomination, the Tribunal affirmed the decision not to grant the visa.