Kumar (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The applicant, Mr. Kumar, sought review of a decision to refuse his visa application. The Tribunal was required to determine whether Mr. Kumar met the criteria for the visa, specifically clause 186.233, which relates to the nomination of a position.

The primary legal issue before the Tribunal was whether the nomination lodged by Dream Merchants Pty Ltd for Mr. Kumar had been approved at the time of the delegate's decision and, consequently, at the time of the Tribunal's own decision. Clause 186.233 outlines several requirements for an approved nomination, including that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, and the visa application must be made within six months of the nomination's approval.

The Tribunal found that the delegate's decision dated 17 October 2016 had determined that the nomination had not been approved at that time. The Tribunal noted that the nominator had not sought review of this decision. Mr. Kumar acknowledged his awareness of the nomination's status and the lack of review proceedings, stating his employer had been dishonest. Based on the evidence, the Tribunal concluded that the nomination had not been approved at the time of its decision, meaning Mr. Kumar did not meet the requirements of clause 186.233. The Tribunal also affirmed the decision not to grant visas to the second and third applicants, as they did not meet the secondary criteria as family members and had not demonstrated they met the primary criteria in their own right.

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