Sultan (Migration)

The applicant sought review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, direct entry stream. The applicant's case was that the nominator, Prime Sector Pty Ltd, had withdrawn its nomination application for the position of Café or Restaurant Manager on 12 April 2019, and that the business had subsequently closed. The applicant stated that he had never met the nominator in person and was only aware of the business's closure upon receiving the visa refusal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994, specifically concerning the approval and non-withdrawal of the nomination. The Tribunal was required to determine if the nomination, as a prerequisite for the visa grant, had been approved and remained valid.

The Tribunal reasoned that clause 187.233(3) mandates that the Minister must have approved the nomination, and clause 187.233(4) requires that the nomination has not subsequently been withdrawn. The evidence established that the nominator had indeed withdrawn its application for approval of the nomination on 12 April 2019. Consequently, the Tribunal concluded that the requirement for an approved and un-withdrawn nomination was not met. The Tribunal noted that it had no discretion to waive this mandatory criterion, regardless of the applicant's personal circumstances or the difficulties encountered.

As the applicant had not met the essential criteria for the Subclass 187 visa in the direct entry stream, the Tribunal affirmed the decision under review. The Tribunal ordered that the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa be affirmed.