Vikas (Migration)

This matter concerned an application by Mr Vikas for a Subclass 187 Regional Employer Nomination (Permanent) (Class RN) visa, specifically under the Direct Entry stream. The dispute arose because the employer's nomination application, which was a prerequisite for Mr Vikas's visa application, had been withdrawn. The decision was made by Katie Malyon, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether Mr Vikas met the criteria for a Subclass 187 visa in the Direct Entry stream, given that the employer's nomination had been withdrawn. Specifically, the Tribunal had to determine if the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994 were satisfied, particularly concerning the existence of an approved and un-withdrawn nomination linked to the applicant's visa declaration.

The Tribunal reasoned that clause 187.233 of Schedule 2 to the Regulations requires that the position to which the visa application relates must be the subject of an approved nomination that has not been subsequently withdrawn. The Tribunal noted that Mr Vikas's employer had withdrawn their nomination application on 10 August 2018. Consequently, the position could not meet the criteria because there was no approved nomination in respect of Mr Vikas. The Tribunal relied on the Full Federal Court's decision in *Singh v MIBP* [2017] FCAFC 105, which established that a withdrawn nomination cannot be relied upon, and even a subsequent nomination for the same position by the same employer would not satisfy the criteria as it would not be the nomination in relation to which the visa applicant made their declaration. As Mr Vikas had only sought to satisfy the Direct Entry stream criteria and had not met these essential requirements, the Tribunal affirmed the decision not to grant the visa.