Sharma (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, by Mr. Sharma. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether Mr. Sharma met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations. This clause mandates, among other things, that the position to which the application relates must be the subject of an approved nomination that has not been subsequently withdrawn, and that the applicant must be identified in the nomination application.

The Tribunal found that the nominator had withdrawn their review application concerning the nomination. Mr. Sharma's evidence indicated that he had been subjected to visa fraud by the nominator, who had sought payments from him and subsequently failed to establish the promised restaurant. Despite acknowledging Mr. Sharma's difficult circumstances and empathy for his situation, the Tribunal was bound to apply the legislation as it stood. As the nomination had been withdrawn, a crucial criterion under cl.187.233 was not satisfied. The Tribunal noted that Mr. Sharma's claims regarding complaints to the Fair Work Ombudsman and the Department of Home Affairs were accepted as written evidence, and it was not necessary to contact the nominated witnesses.

Consequently, as the requirements for the Direct Entry stream of the Subclass 187 visa had not been met, the Tribunal affirmed the decision not to grant the visa.