Harjinder SINGH (Migration)

This matter concerns an appeal by Harjinder Singh against a decision to affirm the refusal of his Subclass 187 Regional Sponsored Migration Scheme visa (Direct Entry stream). The core of the dispute revolved around the applicant's eligibility under clause 187.233(3) of the Migration Regulations, which requires an approved employer nomination for the position. The Tribunal considered the applicant's claims and the evidence presented, including information provided under s359AA of the Migration Act.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233(3), which mandates that the Minister has approved the nomination for the position. This clause, as applicable, requires the nominated position to be located in regional Australia, be the subject of an approved nomination that has not been withdrawn, and for the employer to be the nominator. Further requirements include the absence of adverse information about the nominator, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the employer nomination had been refused by the Tribunal on 7 September 2023, and this decision was affirmed. The refusal stemmed from the employer relocating their business hundreds of kilometres from the originally nominated location. The Tribunal determined that the legislation required the position to be in "that place" as specified in the nomination application, a criterion that was not met due to the relocation. While the employer had the option to lodge a new nomination and visa application, they chose not to, citing concerns about processing times and incorrect migration advice. The Tribunal concluded that there was no approved employer nomination to satisfy clause 187.233(3), which formed a significant reason for affirming the visa refusal. The employer has since appealed this Tribunal decision to the Federal Circuit Court.