Dhawan (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the position of Cook. The applicant sought review of a decision affirming the refusal of his visa application. The applicant contended that he was denied natural justice because he did not receive a letter from the Department inviting him to comment on the refusal of the nomination application, as it was sent to his migration agent's email address. He also argued that the nominator's business was operating at the time of the nomination application and the delegate's decision, and that the Tribunal had jurisdiction to set aside the delegate's decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements for a Subclass 187 visa in the Direct Entry stream, specifically concerning the approval of a nomination for the position. The Tribunal was required to determine if the applicant was identified in an application for approval of a nomination that had been approved by the Minister and had not subsequently been withdrawn, and if the position remained available. The Tribunal also considered the applicant's submissions regarding natural justice and the 'no-fault – no responsibility principle'.

The Tribunal found that while the delegate's refusal of the nomination application was not necessarily due to the applicant's actions, it was not satisfied that the applicant met the requirements of cl 187.233. The Tribunal noted that the nominator's nomination application had been refused on 9 August 2019, and a subsequent review application was found to be outside the Tribunal's jurisdiction because the nominating company had been deregistered on 26 June 2021, prior to the Tribunal's decision on the review. There was no evidence of the company's registration being reinstated. Consequently, the Tribunal was not satisfied that the position to which the visa application related was the subject of an application for approval of a nomination that identified the applicant.

The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa. The applicant had only sought to satisfy the criteria for the Subclass 187 visa in the Direct Entry stream, and as the requirements for this stream had not been met, the decision under review was affirmed.