Shekhar (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The applicant sought to have a decision affirmed that refused the grant of this visa. The Tribunal was required to determine whether the applicant had an approved nomination or a pending but unapproved nomination for the position in question.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several conditions for a valid nomination, including that the nomination must have been approved and not subsequently withdrawn, that the applicant must be identified in the nomination if made after 1 July 2017, and that the position must still be available. The Tribunal also considered whether there was any adverse information known to Immigration concerning the nominator or associated persons, or if such information could be disregarded.

The Tribunal found that the applicant's employer lodged a nomination application on 3 September 2017, which was subsequently refused by a delegate of the Minister on 16 March 2018. Crucially, the applicant's employer did not seek a review of this refusal by the Tribunal. The Tribunal corresponded with the applicant on multiple occasions, including a section 359A notification, to advise that the nomination had been refused and was not under review, and that this fact indicated the applicant did not meet the requirements of clause 187.233. As no response was received from the applicant, the Tribunal concluded that the applicant had not satisfied the criteria for the visa in the Direct Entry stream.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.