Varghese (Migration)

The Administrative Appeals Tribunal considered the case of Mr Varghese, who sought review of a decision to refuse his visa application under the Regional Employer Nomination (Permanent) (Class RN) Subclass 187 visa, specifically the Direct Entry stream for Hospitality, Retail and Service Managers. The core dispute revolved around whether the nomination of the position for which Mr Varghese applied had been approved.

The primary legal issue before the Tribunal was whether the requirements of Clause 187.233 of the Migration Regulations 1994 had been met. This clause mandates that the position must be the subject of an approved nomination application in regional Australia, identify the applicant, and that the nominator must be the prospective employer. Furthermore, the nomination must have been approved and not subsequently withdrawn, with no adverse information known to the Department, and the position must remain available to the applicant. The visa application must also have been lodged no more than six months after the nomination's approval.

The Tribunal reasoned that the Department of Home Affairs' records indicated the nomination application was refused on 29 January 2019, and this decision was not challenged by the nominator. The Tribunal provided Mr Varghese with particulars of this refusal, explaining its relevance to the requirement of an approved nomination and the potential affirmation of his visa refusal. Mr Varghese was given an opportunity to respond but did not request further time. He stated he was aware of the nomination refusal through his migration agent and described circumstances related to delays in commencing employment, including renovations and family issues experienced by the nominator, and confirmed he had not commenced work.

The Tribunal concluded that the decision under review should be affirmed because the essential requirement of an approved nomination had not been met. The refusal of the nomination application meant that the criteria for the visa could not be satisfied.