Wijesooriya Patabandi Muhandiramge (Migration)

This matter concerned an application for review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for an Accountant (General). The applicant, Ms. Wijesooriya Patabandi Muhandiramge, along with her secondary applicants, sought review of the refusal. The core of the dispute revolved around the applicant's eligibility for the visa, particularly concerning the approval of the employer's nomination and allegations of misconduct by a migration agent.

The legal issues before the Tribunal were whether the applicant met the criteria for the Subclass 187 visa, specifically clause 187.233, which requires an approved nomination for a position located in regional Australia. The Tribunal also considered whether the applicant had been denied procedural fairness due to the actions of her migration agent, who allegedly failed to communicate effectively, preventing the applicant from responding to the nomination refusal or visa refusal. Furthermore, the Tribunal examined whether the circumstances warranted a referral to the Minister for potential exercise of public interest powers.

The Tribunal found that the applicant did not satisfy the requirements of clause 187.233 as the nomination had not been approved. While acknowledging the applicant's submissions regarding her long residence in Australia, the birth of her children in Australia, her professional qualifications in a sought-after occupation, and the potential dangers of returning to Sri Lanka, the Tribunal concluded that these circumstances, while potentially "exceptional," did not overcome the fundamental failure to meet the visa criteria. The Tribunal noted that the migration agent's alleged negligence meant the applicant was unaware of the reasons for the nomination refusal and had lost the opportunity to address it or pursue review. Despite these compassionate factors, the primary criterion of an approved nomination was not met.

Consequently, the Tribunal affirmed the decision not to grant the visa, as the primary applicant did not meet the criteria, meaning the secondary applicants also could not meet their dependent criteria. However, the Tribunal found the case to be exceptional and referred it to the Minister for consideration of the exercise of public interest powers.