Song (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for a position as a Chef. The applicant sought review of a decision not to grant the visa. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically concerning the approval of the employer's nomination.

The primary legal issue before the Tribunal was whether the applicant's nominated position met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the position must be the subject of an approved nomination, that the nominator must be the prospective employer, and that the nomination must not have been withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the nominator's application for approval of the nomination was refused by the Department, and a subsequent review application was withdrawn by the nominator before reaching the Tribunal. The applicant failed to provide any response or comments regarding this critical information. Citing the Federal Court's decision in *Singh v MIBP* [2017] FCAFC 105, the Tribunal emphasised that the visa scheme intends for applications to be assessed against a specific, approved employer nomination. As the nomination for the applicant's position was not approved, the Tribunal concluded that the applicant did not meet the criteria under cl.187.233(3).

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 187 visa, as the essential requirements for the Direct Entry stream were not satisfied.