SANTOSCOY PADILLA (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, by Mr Armando Santoscoy Padilla, with his sponsoring employer Earthnote Australia Pty Limited (ENAUS). The Department had refused ENAUS's application for approval of a nomination for the position of General Manager, and consequently, Mr Santoscoy Padilla's visa application was also refused. Both ENAUS and Mr Santoscoy Padilla sought review of these decisions before the Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the position of General Manager had been approved, as required by the Migration Regulations. Specifically, the Tribunal considered whether the applicant had satisfied the criteria under clause 187.233(3) of the Regulations, which necessitates an approved nomination for the position. The Tribunal also had to determine the consequences of the applicant's failure to respond to an invitation to provide comments on the lack of an approved nomination.

The Tribunal reasoned that for a Subclass 187 visa in the Direct Entry stream, clause 187.233 requires the nominated position to be the subject of an approved nomination application under the relevant regulations. The Tribunal noted that the Department had refused the nomination application, and this decision had been affirmed by the Tribunal in a separate proceeding. Subsequently, the Tribunal issued a letter to the applicant pursuant to section 359A of the Migration Act, advising that without evidence of an approved nomination, he could not satisfy clause 187.233(3), and that the visa decision would likely be affirmed. The applicant was invited to provide a response, but failed to do so within the prescribed period. Applying section 359C and 360(3) of the Migration Act, the Tribunal proceeded to make a decision without further steps, concluding that the necessary criteria for the visa had not been met.

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