Chhibber (Migration)

The Administrative Appeals Tribunal considered the case of Mr Kapil Chhibber, his wife Mrs Heena Chhibber, and their child Mr Vedansh Chhibber, who sought Regional Employer Nomination (Permanent) (Class RN) visas, subclass 187, under the direct entry stream for a café or restaurant manager position. The core dispute revolved around whether the nominated position met the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the approval and status of the nomination application.

The Tribunal was required to determine if the nominated position was the subject of an approved nomination that had not been subsequently withdrawn, and if the applicant had been identified in the nomination application. Further, the Tribunal had to consider whether the nominator was the prospective employer, if the position remained available, and if the visa application was lodged within six months of the nomination's approval. The Tribunal also had to assess the eligibility of the secondary applicants as members of the family unit.

The Tribunal reasoned that for the visa to be granted, the nomination must have been approved and not withdrawn. In this instance, the nominator's application for approval of the nominated position was refused by the Department on 20 September 2019. Although the nominator lodged an application for review with the Tribunal, they subsequently withdrew this application on 25 November 2022. The Tribunal noted that the applicant had returned to India on 26 February 2020 and had remained there due to COVID-19 travel restrictions. Crucially, the Tribunal found that the nomination had not been approved and had been withdrawn, thus failing to meet the requirements of clause 187.233(4).

Consequently, the Tribunal affirmed the decision not to grant the subclass 187 visas to Mr Kapil Chhibber, Mrs Heena Chhibber, and Mr Vedansh Chhibber. The secondary applicants were found not to meet the criteria for members of the family unit, and there was no evidence they met the primary criteria independently.