Kuppusamy (Migration)

This matter concerned an appeal by Mr Palanyvela Kuppusamy against the refusal of his Subclass 186 Employer Nomination (Permanent) visa application. The applicant sought to satisfy the criteria for the Direct Entry stream of this visa. The core of the dispute revolved around whether the applicant had an approved nominating sponsor and position, as required by the Migration Regulations.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations, specifically concerning the approval of the nomination for the position. This clause mandates that the Minister must have approved the nomination, that the nomination has not been withdrawn, and that the position remains available to the applicant. The Tribunal was also required to consider adverse information that had been provided to the applicant regarding the nominator's failure to meet nomination requirements.

The Tribunal's reasoning was grounded in the fact that the nominator, Rich Mahal Restaurant Pty Ltd, had previously had its nomination application refused by the Tribunal on 20 November 2019. This refusal meant that the essential requirement of an approved nomination, as stipulated in clause 186.233(3), could not be met by the applicant. Despite being provided with an opportunity to comment on this adverse information, the applicant had not demonstrated how he met the criteria. Consequently, the Tribunal affirmed the decision not to grant the visa.