Nayak (Migration)

This matter concerned an appeal by Mr. Nayak against the refusal of his application for a Regional Employer Nomination (Permanent) (Class RN) visa, and the secondary applications of his family members. The primary ground for refusal by the delegate was that the nomination by Gaurish for Mr. Nayak’s position had not been approved, and consequently, other criteria for the visa were not assessed.

The legal issues before the Tribunal were whether the criteria set out in clause 187.233 of Schedule 2 to the Regulations were satisfied, specifically concerning the approval of the nomination, the employer's identity, and the absence of adverse information. The Tribunal was also required to consider the impact of previous adverse information concerning Gaurish's compliance with sponsorship obligations.

The Tribunal found that the nomination for Mr. Nayak's position had been approved in a related application and had not been withdrawn, thus satisfying clauses 187.233(3) and (4). It was also satisfied that Gaurish was the employing company and had made the nomination, meeting clause 187.233(2). While there was adverse information regarding Gaurish's past non-compliance with sponsorship obligations, which resulted in a six-month bar on sponsoring individuals, the Tribunal noted that this breach was narrow in scope, was rectified, and Gaurish had been cooperative. Given these findings, the Tribunal determined it was reasonable to disregard the adverse information in the context of Mr. Nayak's application.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that Mr. Nayak met the criteria specified in clause 187.233 of Schedule 2 to the Regulations.