Raj Kumar Singh (Migration)

This matter concerned an application for review of a decision not to grant Regional Employer Nomination (Permanent) (Class RN) visas, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant sought to satisfy the criteria for this visa based on a nomination lodged by Kingaroy Royal Cuisine Pty Ltd. However, this nomination was refused by the department, and Kingaroy Royal Cuisine Pty Ltd subsequently ceased operations without lodging an appeal. The Tribunal, presided over by Bridget Cullen, was required to determine whether the applicant met the relevant visa criteria, specifically concerning the approval of the employer nomination.

The central legal issue before the Tribunal was whether the applicant had satisfied clause 187.233 of the Migration Regulations 1994, which pertains to the approval of an employer nomination for a Direct Entry stream visa. This clause requires, among other things, that the nomination has been approved and has not been subsequently withdrawn, and that the position remains available to the applicant. The Tribunal also considered whether the applicant could provide a new nomination or if the existing circumstances, including the refusal of the initial nomination and the cessation of the nominating business, precluded them from meeting the criteria.

The Tribunal reasoned that the applicant could not meet clause 187.233(3) because the employer nomination lodged by Kingaroy Royal Cuisine Pty Ltd had been refused and no appeal was lodged. Furthermore, the nominating business had ceased to exist. Despite being given an opportunity to comment on this issue and expressing a desire to lodge a new application with a different employer, the applicant had not presented an approved nomination. Consequently, the Tribunal concluded that the primary applicant did not meet the requirements for the Subclass 187 visa in the Direct Entry stream. As a result, the secondary applicant, who relied on the primary applicant's eligibility, also failed to meet the secondary criteria. The Tribunal affirmed the decision not to grant the visas to either applicant.