Singh (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Singh, who sought a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), specifically under the Direct Entry stream. The dispute arose because the nomination application for Mr. Singh's employment was refused, and he did not respond to a section 359A invitation from the Tribunal to comment on information that would likely lead to the affirmation of the decision.

The primary legal issue before the Tribunal was whether Mr. Singh met the requirements of clause 187.233 of the Migration Regulations, which pertains to the nomination of a position for a Subclass 187 visa. Specifically, the Tribunal had to determine if the nominated position was the subject of an approved nomination, as required by subclause 187.233(3). A secondary issue was whether Mr. Singh was entitled to appear before the Tribunal, given his failure to respond to the section 359A invitation.

The Tribunal reasoned that clause 187.233(3) mandates that the nomination must be approved. As the Tribunal had previously affirmed the decision refusing the approval of the nomination made by Darbar Indian Nepalese Restaurant (Fremantle) Pty Ltd, this essential criterion was not met. Furthermore, the Tribunal had issued a section 359A invitation to Mr. Singh, providing him with an opportunity to respond to the information that formed the basis of the likely decision to affirm the refusal of the nomination. His failure to provide a response within the prescribed period, and without seeking an extension, meant that section 359C applied, and consequently, under section 360(3), he was not entitled to appear before the Tribunal, as confirmed by the principle in *Hasran v MIAC* [2010] FCAFC 40.

The Tribunal concluded that Mr. Singh did not satisfy clause 187.233(3) because the nomination was not approved. As this was an essential criterion for the Subclass 187 visa in the Direct Entry stream, and no claims were made regarding other visa streams, the Tribunal affirmed the decision not to grant the visa.