Vithana Pathirana (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, in the Direct Entry stream. The applicant sought to have a decision of the Tribunal, which affirmed a decision not to grant the visa, reviewed. The core of the dispute revolved around whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a Subclass 187 visa in the Direct Entry stream, specifically concerning the nomination of the position. This involved determining whether the nominated position was approved, had not been withdrawn, and if other associated requirements, such as the applicant being identified in the nomination and the position remaining available, were met. The Tribunal also considered whether the applicant had been afforded procedural fairness in relation to adverse information.

The Tribunal reasoned that a fundamental requirement for the visa was an approved nomination that had not been subsequently withdrawn. The applicant explained that the nominator had withdrawn their nomination review application due to the hotel closing for nearly a year because of COVID-19, resulting in the applicant's redundancy. Although the hotel had since reopened, the applicant was not offered his job back. Despite expressing empathy for the applicant's circumstances, the Tribunal concluded that the legislative requirements had not been met, as the nomination had been withdrawn.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Regional Employer Nomination (Permanent) (Class RN) visa, as the essential criteria for the Direct Entry stream had not been satisfied.