Sanjeev Kumar (Migration)

This matter concerned an application for review by Mr Sanjeev Kumar of the Department's decision to refuse his Subclass 187 (Regional Sponsored Migration Scheme) visa. The applicant's sponsoring employer, OM Cleaning Services Pty Ltd, had applied for approval of a nomination for the position of Customer Service Manager. The Department subsequently refused both the employer nomination and Mr Kumar's visa application, stating that the nomination had not been approved. OM Cleaning Services Pty Ltd and Mr Kumar applied to the Tribunal for review of these decisions.

The primary legal issue before the Tribunal was whether the nomination for the position of Customer Service Manager had been approved, as this was a prerequisite for the grant of the Subclass 187 visa. The Tribunal also considered whether Mr Kumar was entitled to appear before it to give evidence and present arguments, given the circumstances.

The Tribunal noted that OM Cleaning Services Pty Ltd had initially sought review of the Department's refusal of its nomination application but subsequently withdrew that review application. This withdrawal meant that the Department's decision to refuse the nomination stood, and therefore, there was no valid approved employer nomination. The Tribunal had written to Mr Kumar on 20 April 2020, pursuant to section 359A of the Migration Act 1958, inviting him to comment on or respond to the information that the nominator's application had been refused and that the review of that refusal had been withdrawn. This information was relevant because an approved nomination is a requirement for the grant of the visa. Mr Kumar failed to respond to this invitation by the specified date.

As the employer nomination had not been approved, Mr Kumar did not satisfy a critical requirement for the grant of the Subclass 187 visa. The Tribunal concluded that, in the absence of a response to the section 359A invitation, Mr Kumar had lost any entitlement to appear before the Tribunal. Consequently, the Tribunal affirmed the Department's decision not to grant Mr Kumar's visa.