Sunil Kumar (Migration)

This matter concerned an application for review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant, Sunil Kumar, sought to have the decision affirmed by the Administrative Appeals Tribunal (AAT). The core of the dispute revolved around whether the applicant was the subject of an approved nomination for the nominated occupation, a prerequisite for this visa subclass.

The Tribunal was required to determine whether the applicant had satisfied the criteria for the Subclass 187 visa, specifically concerning the requirement for an approved nomination. This involved considering whether a valid nomination had been made, approved, and remained in effect, and whether the applicant had provided sufficient information and evidence to support their claim, particularly in response to the Tribunal's requests for comment. The Tribunal also had to consider the applicant's requests for deferral and the circumstances surrounding his failure to provide timely responses.

The Tribunal reasoned that a previous decision on 19 July 2020 had affirmed the refusal of the nomination by the Department, and there was no indication that this decision was under appeal. Consequently, the Tribunal found that there was no approved nomination in place that related to the applicant's visa application. Despite the applicant's explanations for not responding earlier, including illness, and his subsequent requests for deferral to pursue a different visa pathway, the Tribunal concluded that the essential legislative requirements for the visa had not been met. The Tribunal applied the relevant provisions of the Migration Act and Regulations, including Clause 187.233, which mandates an approved nomination for this visa stream.

Ultimately, the Tribunal affirmed the decision under review, finding that the applicant had not satisfied the criteria for the Subclass 187 visa in the Direct Entry stream. The Tribunal concluded that as the necessary requirements had not been met, the application for the visa could not succeed.