Diwan (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision not to grant Regional Employer Nomination (Permanent) (Class RN) visas, Subclass 187, Direct Entry stream, to the applicants, Mr Parshant Diwan, Mrs Deepali Arora, and Mr Arindam Diwan. The core of the dispute revolved around whether the applicants met the requirements of regulation 187.233 of the Migration Regulations 1994, specifically concerning the nomination of a position in regional Australia.

The Tribunal was required to determine whether the nominated position met the criteria set out in regulation 187.233, including that the nomination had been approved and not withdrawn, that the employer was the nominator, that there was no adverse information concerning the nominator or associated persons, that the position remained available, and that the visa application was made within six months of the nomination approval. A critical issue was the fact that the nomination by Jay Charbhujaji Pty Ltd had been refused on 8 January 2018, and no application for review of this refusal had been lodged with the Tribunal.

The Tribunal reasoned that the failure to have an approved nomination was a fundamental impediment to the applicants meeting the requirements of regulation 187.233. Despite being notified of this issue and invited to comment or provide a response by 26 June 2019, the applicants failed to do so, and no extension of time was sought or granted. Consequently, the Tribunal applied section 359C and 360(3) of the Migration Act 1958, which meant the applicants were not entitled to appear before the Tribunal. The Tribunal concluded that Mrs Deepali Arora and Mr Arindam Diwan did not meet regulation 187.311.

The Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to the applicants.