Kumar (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Direct Entry stream. The applicant sought to have a decision affirmed by the Administrative Appeals Tribunal, which had upheld the refusal of his visa application. The core of the dispute revolved around the applicant's reliance on a nomination for the position of Retail Manager by Pramukh Swami Maharaj Pty Ltd, which had been refused by a delegate of the Minister.

The Tribunal was required to determine whether the applicant satisfied clause 187.233 of the Migration Regulations, which sets out the criteria for a nomination in the Direct Entry stream. This clause mandates, among other things, that the nominated position must be located in regional Australia, be the subject of an approved nomination that has not been withdrawn, and that the applicant must be identified in the nomination if made after 1 July 2017. The Tribunal also had to consider whether there was any adverse information known to the Department about the nominator or associated persons, and whether the position remained available to the applicant.

The Tribunal reasoned that the applicant's visa grant was contingent upon the approval of his nominator's application. As the nomination had been refused by the Department and this refusal was not challenged or overturned, the applicant could not satisfy the essential requirement of an approved nomination. The applicant acknowledged this dependence and expressed concern that his nominator and agent had failed him, placing him in a vulnerable position. However, the Tribunal found that the applicant had not provided any information to refute the delegate's decision or to demonstrate that the criteria for the visa had been met. The Tribunal refused the applicant's request for an adjournment to allow for a new nomination, as it was not satisfied that this would alter its findings.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 187 visa, as the requirements of the Direct Entry stream, particularly the need for an approved nomination, had not been met.