Avinash Kumar (Migration)

This matter concerned an application for review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), direct entry stream. The applicant, Avinash Kumar, sought to have the refusal of his visa application set aside.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the nomination of a position. This clause requires, among other things, that the nominated position be approved and not subsequently withdrawn, that the nominator be the prospective employer, and that the position remains available to the applicant.

The Tribunal noted that the applicant had been employed by the nominator from January 2017 until February 2020, but was no longer employed by them. Crucially, the Tribunal raised information under section 359AA of the Migration Act 1958, indicating that the nominator's application for approval of the nominated position had been refused and that the nominator had subsequently withdrawn their application for review of that refusal. This meant the nomination had not been approved. The applicant confirmed he understood the relevance of this information and had no comments to make.

Given that the nomination had not been approved, the Tribunal concluded that the applicant had not met the requirements for the grant of a Subclass 187 visa. Accordingly, the Tribunal affirmed the decision not to grant the visa.