Trishna (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, by an applicant seeking to be employed as a Cook. The core dispute revolved around the refusal of the nomination made by TST Regal Pty Ltd, which the Administrative Appeals Tribunal (AAT) affirmed. The applicant sought review of the AAT's decision.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 187.233 of the Migration Regulations 1994. This clause, as applicable to nominations made on or after 1 July 2017, requires, among other things, that the nominated position be located in regional Australia, that the nominator be the prospective employer, that the nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application is made within six months of the nomination's approval.

The Tribunal reasoned that a fundamental requirement of clause 187.233(3) is that the nomination must have been approved by the Minister. As the nomination made by TST Regal Pty Ltd had been refused, this essential criterion was not met. The Tribunal had previously notified the applicant of its intention to affirm the decision, providing an opportunity to comment on the refusal of the nomination and its relevance to clause 187.233(3). The applicant's migration agent responded by requesting the Tribunal to proceed with the decision, acknowledging that the nomination was not approved and that the Tribunal would likely affirm the Department of Home Affairs' decision.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 187 visa, as the applicant had failed to satisfy the mandatory criteria for the Direct Entry stream due to the non-approval of the nomination.