1508718 (Migration)

This matter concerned an application for review of a decision by the Department of Immigration not to approve a nomination for a position. The applicant was nominated for the position of Minister of Religion by Shri Shiva Mandir Ltd. The Department refused this nomination, and Shri Shiva Mandir Ltd sought review by the Tribunal. The Tribunal affirmed the Department's decision on 15 August 2016. Subsequently, the Tribunal invited the review applicant to provide comments on information that would form the basis of its decision to affirm the original refusal, which related to the nomination itself.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, specifically concerning the nomination of a position for the Direct Entry stream. This clause mandates that the nominated position must have been the subject of an application for approval under specific regulations, that the nominator must be the prospective employer, that the nomination must have been approved and not withdrawn, that there must be no adverse information known to the Department about the nominator or associated persons (or such information must be disregarded), that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's reasoning focused on the fact that the Department had refused the nomination made by Shri Shiva Mandir Ltd, and this refusal had been affirmed by the Tribunal. Despite submissions from the applicant's representative requesting a postponement of the Tribunal's decision to allow for responses from the Department and the potential lodging of a judicial review application concerning the nomination, the Tribunal proceeded on the information before it. The Tribunal noted that the requested information for the nomination was not submitted within the prescribed period. As the Tribunal had affirmed the Department's decision not to approve the nomination, and the secondary applicants were family members of the primary applicant, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to all applicants.