Singh (Migration)

This matter concerned an appeal by Mr Singh against the refusal of his Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, direct entry stream. The core of the dispute revolved around the approval of the nominated position, which was a prerequisite for the visa grant. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the visa, specifically concerning the approved nomination of the position.

The legal issues before the Tribunal included whether the nominated position had been approved in accordance with the relevant regulations, and whether the applicant had been afforded procedural fairness. The applicant's representative had requested a recording of a previous hearing concerning the nomination review, raising concerns that its absence might constitute a breach of procedural fairness. The Tribunal also had to consider the impact of its prior decision to affirm the refusal of the nomination of the position by Canwash Pty Ltd.

The Tribunal reasoned that a critical criterion for the Subclass 187 visa, as stipulated in clause 187.233(3), required the nomination of the position to have been approved. It noted that the nomination by Canwash Pty Ltd. had been refused by the Department of Home Affairs and that this decision was affirmed by the Tribunal on 30 October 2020. Consequently, this prior decision created an insurmountable barrier to the grant of the visa to Mr Singh, as the essential criterion of an approved nomination was not met. Regarding the procedural fairness claim, the Tribunal found that access to the recording of the nomination review hearing could not have altered the outcome, as the applicant's migration agent was present at the hearing and the essential fact of the nomination's refusal was already known.

The Tribunal affirmed the delegate's decision not to grant the visa.