Nukalagudem (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a Retail Manager. The applicant's visa application was subject to an approved nomination by Shri Sai Nidhi Pty Ltd. The dispute arose when the nomination application was initially withdrawn due to an error by the migration agent, and subsequently, the visa applicant did not respond to an invitation under section 359A of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal (AAT) was required to determine whether the visa applicant was entitled to the visa.

The primary legal issue before the Tribunal was whether the visa applicant was the subject of an approved nomination, as required by regulation 187.233 of the Migration Regulations 1994 (Cth). This regulation outlines several criteria for a valid nomination, including that the nomination must have been approved by the Minister and not subsequently withdrawn. The Tribunal also considered whether the applicant was entitled to appear before it, given the circumstances surrounding the nomination's withdrawal and reinstatement.

The Tribunal reasoned that while the nomination application had been reinstated following a finding that its withdrawal was due to the agent's error and it would be unfair not to allow it to proceed, the critical requirement of regulation 187.233(3) – that the Minister has approved the nomination – was not met. The Tribunal noted that the nomination application itself was still under review and had not been approved by the Minister. Furthermore, the applicant failed to respond to the invitation under section 359A, which meant they were not entitled to appear before the Tribunal.

Consequently, the Tribunal affirmed the decision not to grant the applicant the visa, finding that the requirements of regulation 187.233 were not satisfied.