Gurung (Migration)

This matter concerned an appeal by Ms. Rakshya Gurung against the refusal of her Subclass 187 Regional Employer Nomination (Permanent) visa. The applicant's sponsoring employer, Overall Tradings Pty Ltd, had applied for approval of a nominated position as Café or Restaurant Manager. The Department of Immigration initially refused this nomination, and this refusal was subsequently affirmed on review by the Administrative Appeals Tribunal (AAT). Consequently, Ms. Gurung's visa application was refused because the underlying nomination was not approved, a prerequisite for the visa grant under cl.187.233 of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was whether the applicant's Subclass 187 visa application should be granted, given that the employer's nomination for the relevant position had been refused and that refusal affirmed. This required the Tribunal to determine if the applicant met the criteria for the visa, specifically concerning the requirement for an approved nomination. The Tribunal also considered the applicant's response, or lack thereof, to an invitation to comment on information that would likely lead to the affirmation of the decision under review.

The Tribunal reasoned that a fundamental requirement for the grant of a Subclass 187 visa, particularly in the Direct Entry stream, is that the nominated position must have been approved. As the employer's nomination had been refused and this refusal upheld by the Tribunal, there was no valid approved nomination. The Tribunal had invited the applicant to comment on this critical fact, pursuant to s.359A of the Migration Act 1958, but no response was received by the specified deadline. In the absence of any approved nomination and any response from the applicant to address this deficiency, the Tribunal concluded that the applicant did not satisfy the requirements for the visa.

Accordingly, the Tribunal affirmed the decision not to grant Ms. Gurung's Regional Employer Nomination (Permanent) visa.