Bakhshi (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, by Shelly Bakhshi. The applicant's eligibility for the visa was contingent on an approved nomination by Medical Training and Development Pty Ltd. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, which pertains to the nomination of a position.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233, specifically subclause (3), which mandates that the nomination must have been approved and not subsequently withdrawn. The Tribunal also considered whether it was appropriate to grant an indefinite adjournment of its decision pending the outcome of judicial review proceedings initiated by the nominator concerning the refusal of their nomination.

The Tribunal reasoned that the nominator's application for approval of the nomination had been refused on 2 March 2020. As a consequence, the applicant could not satisfy clause 187.233(3), as the essential requirement of an approved nomination was not met. The Tribunal had notified the applicant of its intention to affirm the decision, providing an opportunity to respond to the information that the nomination refusal was relevant to the applicant's eligibility. The applicant requested an indefinite adjournment of the visa application decision, citing the nominator's intention to seek judicial review of the nomination refusal. However, the Tribunal concluded that it was not empowered to grant an indefinite adjournment and that the applicant's failure to meet the criterion of an approved nomination meant the decision under review should be affirmed.