Winter (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), under the direct entry stream. The applicant's original employer, Jai Shiv Shakti Noodles Bar & Café Pty Ltd, had its nomination application refused, a decision affirmed by the Tribunal. The applicant had continued to work as a Chef, initially with the original employer until its business closure, and subsequently with a new employer, Canberra Southern Cross Club – Yacht Club Venue.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning an approved nomination for the position. This clause mandates that the position must be the subject of an approved nomination, that the employer making the nomination must be the prospective employer of the applicant, that the nomination must not have been withdrawn, that there must be no adverse information known to the Department or such information must be disregarded, that the position must remain available, and that the visa application must be made within six months of the nomination's approval.

The Tribunal found that the original nomination by Jai Shiv Shakti Noodles Bar & Café Pty Ltd had been refused and affirmed on review, meaning there was no approved nomination in place. While the applicant had commenced working with a new employer, Canberra Southern Cross Club – Yacht Club Venue, and that employer intended to lodge a new nomination application, this new nomination had not yet been made or approved at the time of the hearing. Consequently, the applicant had not met the essential criterion of having an approved nomination linked to the visa application. The Tribunal also noted it lacked the power to request the Department to remove any potential bar under section 48 of the Migration Act 1958 that might prevent the applicant from making a new nomination application while onshore.

As the applicant failed to satisfy the mandatory requirements for the Subclass 187 visa in the direct entry stream, the Tribunal affirmed the decision not to grant the visa.