Aggarwal (Migration)

The Administrative Appeals Tribunal considered a decision concerning an application for a Regional Employer Nomination (Permanent) visa (Subclass 187) under the Regional Sponsored Migration Scheme. The applicant, Mr. Aggarwal, sought review of a decision that refused his visa application. The core of the dispute revolved around the requirement for an approved nomination for the position offered to the applicant.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the nomination of the position. This clause mandates that for applicants in the Direct Entry stream, the position must have been the subject of an approved nomination application. The Tribunal also considered whether the applicant met other related criteria, such as the nominator being the prospective employer, the nomination not being withdrawn, the absence of adverse information, the continued availability of the position, and the visa application being lodged within six months of the nomination approval.

The Tribunal reasoned that the evidence presented, including the delegate's decision record, indicated that the nomination lodged by Guru Mahima Pty Ltd for Mr. Aggarwal was refused on 20 January 2015. As the nomination had been refused, the Tribunal concluded that the applicant could not meet the requirement under clause 187.233(3) that the nomination be approved. While the applicant presented documents relating to other employees and previous visa applications, none demonstrated that his specific nomination had ever been approved. The Tribunal also noted that the applicant had previously failed to satisfy the requirements of Public Interest Criterion 4020 in relation to a different visa application, a matter that had been considered by both the Department and the Tribunal.

Consequently, the Tribunal affirmed the decision not to grant the visa. As Mr. Aggarwal did not meet clause 187.233, the Tribunal also found that the second-named applicants, who were presumably family members linked to his application, did not meet the related criterion of clause 187.311. The Tribunal therefore affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to the applicants.