Kharel Kandel (Migration)

This matter concerned an appeal by Kharel Kandel against a decision relating to a Subclass 187 Regional Employer Nomination (Permanent) (Class RN) visa application. The applicant was nominated by Shridar Paudel for the position of Café or Restaurant Manager. The primary dispute before the Tribunal was whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994, specifically concerning the nominated position.

The Tribunal was required to determine if the nominated position was the subject of an approved nomination, if the nominator was the prospective employer, if the nomination had been approved and not withdrawn, if there was any adverse information known to the Department about the nominator or associated persons, if it was reasonable to disregard any such adverse information, if the position remained available to the applicant, and if the visa application was made within six months of the nomination's approval. The Tribunal also had to consider adverse information that was subject to Certificates of Non-Disclosure.

The Tribunal found that the nomination had been approved by the Tribunal itself on 24 April 2019, setting aside a prior refusal by the Department. It was satisfied that the nomination had not been withdrawn, the position remained available, and the visa application was lodged within the prescribed timeframe. Crucially, the Tribunal considered adverse information presented under section 376 Certificates of Non-Disclosure, put the gist of this information to the applicant under section 359AA of the Migration Act 1958, and ultimately decided it was reasonable to disregard this information. Consequently, the Tribunal concluded that the applicant met all the requirements of clause 187.233.

Given these findings, the Tribunal remitted the visa applications for reconsideration by the Minister, with a direction that the first applicant met the criteria under clause 187.233. The secondary applicant's application was to be determined by reference to the outcome of the primary applicant's application upon remittal.