Bharaj Construction Pty Ltd (Migration)

This matter concerned an appeal before the Federal Circuit Court of Australia regarding a Subclass 119 (Regional Sponsored Migration Scheme) visa application. The review applicant, Bharaj Construction Pty Ltd, sought the approval of a nomination for a Carpenter position for a visa applicant. The core dispute revolved around whether the visa applicant met the requirements of clause 119.221 of the Migration Regulations 1994, which mandates that the relevant appointment must have been approved.

The primary legal issue before the court was whether the visa applicant satisfied clause 119.221 of the Migration Regulations 1994, specifically concerning the requirement for an approved employer nomination. This required the court to consider the validity and status of Bharaj Construction Pty Ltd's nomination application, which had been refused by the Department of Immigration and subsequently affirmed by the Tribunal on multiple occasions, despite a prior quashing of a Tribunal decision by the Federal Circuit Court.

The Tribunal reasoned that clause 119.221 necessitates that the appointment mentioned in clause 119.211(1) has been approved, remains un-withdrawn, continues to meet approval criteria, and is still available to the applicant. As the nomination application by Bharaj Construction Pty Ltd had been refused and this refusal was affirmed by the Tribunal, the visa applicant could not satisfy the requirement of an approved appointment. Furthermore, the Tribunal found that other named visa applicants did not meet subclause 119.211(1) as they were not nominated by an employer and did not satisfy clause 119.311 as they were not family members of a primary applicant who met the criteria.

Consequently, the Tribunal affirmed the decision not to grant the visa applicants Employer Nomination (Migrant) (Class AN) visas.