Chhikara (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) direct entry stream, for Mr. Vikas Chhikara and his dependents. The dispute arose because the applicant failed to provide a mandatory skills assessment for the relevant occupation at the time of application, a requirement under clause 186.234(2)(a) of Schedule 2 to the Migration Regulations. The applicant sought to rectify this deficiency after receiving an invitation to comment from the Department, requesting that the application be treated as for a Subclass 187 visa due to an alleged error by his migration agent in selecting the subclass from a dropdown list. The decision was made by the Migration and Refugee Division of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a Subclass 186 visa, specifically clause 186.234(2)(a), which requires a suitable skills assessment by a specified authority unless the applicant falls within a class of exempt persons. A secondary issue concerned the eligibility of the secondary applicants, which depended on the primary applicant meeting the criteria. The Tribunal was also required to consider whether it had the power to treat the application as one for a Subclass 187 visa, as requested by the applicant.

The Tribunal reasoned that the applicant was not an exempt person under the relevant legislative instrument. Crucially, the applicant did not provide a suitable skills assessment at the time of application, which was a mandatory requirement for the direct entry stream of the Subclass 186 visa. While the applicant provided a skills assessment and nomination approval after the Department's invitation to comment, these were submitted after the application date and did not satisfy the temporal requirements of the regulations. The Tribunal found that it lacked the power to consider the applicant's eligibility for a Subclass 187 visa, as the application was lodged as a Subclass 186. Consequently, the secondary applicants also failed to meet the criteria for their visas.

The Tribunal affirmed the decisions not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.