Pradhan (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), in the Direct Entry stream. The applicants sought to have a decision affirmed that refused the approval of a nomination made by Darbar Indian Nepalese Restaurant (Fremantle) Pty Ltd. The Tribunal, constituted by Karen McNamara, was required to determine whether the applicants met the requirements of clause 187.233 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicants satisfied clause 187.233, which outlines the criteria for a nominated position in the Direct Entry stream. Specifically, the Tribunal had to consider whether the nomination had been approved and had not been subsequently withdrawn, as this was a prerequisite for meeting the visa requirements. A further issue arose regarding the applicants' entitlement to respond to information that the Tribunal considered would be part of the reason for affirming the decision, following the Tribunal's invitation under section 359A of the Migration Act 1958.

The Tribunal reasoned that the nomination application had been refused on 30 April 2019, and this refusal meant that subregulation 187.233(3) was not met. The Tribunal had invited the applicants to comment on this refusal and its relevance to their visa application, providing a deadline for response. As the applicants failed to provide the requested comments within the prescribed period, section 359C of the Act applied, meaning the applicants were not entitled to appear before the Tribunal, as per section 360(3). The Tribunal affirmed the decision under review because the essential criterion of an approved nomination had not been satisfied.

Consequently, the Tribunal affirmed the decision not to grant the applicants the Regional Employer Nomination (Permanent) (Class RN) visas.