Saini (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, specifically under the Subclass 187 Regional Sponsored Migration Scheme, Direct Entry stream, for the position of Cafe or Restaurant Manager. The applicant sought review of a decision to refuse the visa. The primary issue before the Tribunal was whether the applicant had satisfied the criteria for the visa, particularly concerning the nomination of the position.

The Tribunal was required to determine if there was an approved nomination in place for the position as required by clause 187.233 of the Migration Regulations. This clause mandates that the nominated position must be located in regional Australia, be the subject of an approved nomination application, and, where the nomination was made on or after 1 July 2017, identify the applicant. Further requirements include that the nominator must be the prospective employer, the nomination must not have been subsequently withdrawn, there must be no adverse information known to the Department or it must be reasonable to disregard such information, the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal noted that the nomination lodged by AK & ESHAAN PTY. LTD. for the position had been refused by the Department on 22 June 2018. Subsequently, an application for review of this refusal by the nominator was withdrawn and accepted by the Tribunal on 14 April 2021. The applicant was notified of this information and invited to comment, but did not respond. The Tribunal found that the nomination had been refused and that the Tribunal had no jurisdiction to review that refusal. Consequently, the Tribunal concluded that the applicant did not satisfy clause 187.233(3) because the nomination had not been approved. As the applicant had only sought to satisfy the criteria for the Direct Entry stream and these requirements were not met, the Tribunal affirmed the decision under review.