DESAI (Migration)

The applicant, Mr Desai, sought judicial review of a decision by the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm the refusal of his Subclass 187 (Regional Sponsored Migration Scheme) visa application, specifically under the direct entry stream for a retail manager position. The nominating business's position nomination had previously been refused, and this refusal was affirmed on review. Subsequently, Mr Desai left the employment of the nominating business and relocated to a different city.

The primary legal issue before the Court was whether the delegate erred in affirming the refusal of Mr Desai's visa application, notwithstanding that he had ceased employment with the nominating business and moved to another city after the nomination itself had been refused. This required the Court to consider the interplay between the requirements for a valid nomination and the applicant's subsequent circumstances in relation to the visa application.

The Court reasoned that the validity of the visa application was contingent upon an approved nomination. As the nomination had been refused and that refusal affirmed, there was no approved nomination upon which Mr Desai's visa application could be granted. The Court applied the principle that a visa cannot be granted in the absence of a valid and approved nomination, and that the applicant's subsequent actions, such as leaving the nominating business, did not cure the fundamental defect arising from the refused nomination.

The application for judicial review was dismissed.