Harsh Bala (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to refuse Ms. Harsh Bala a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, under the Direct Entry stream. Ms. Bala had applied for the visa on 8 November 2017, seeking to work for Aayushman, Pty Ltd T/A Devlish 20. The delegate's refusal was based on the applicant not meeting criterion cl.187.233 of the Migration Regulations 1994, as the nomination lodged by Aayushman Pty Ltd had been refused.

The central legal issue before the Tribunal was whether an approved nomination, satisfying the requirements of cl.187.233 of the Regulations, existed in relation to Ms. Bala's visa application. This clause mandates that the nominated position must be located in regional Australia, be the subject of an application for nomination approval under the Direct Entry stream, and, for nominations made on or after 1 July 2017, identify the applicant in relation to that position. Further requirements include that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, and there must be no adverse information known to Immigration concerning the nominator or associated persons, unless such information is reasonable to disregard. Additionally, the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval.

The Tribunal's reasoning focused on the requirement for an *approved* nomination. As the nomination lodged by Aayushman Pty Ltd was refused, it could not satisfy the conditions stipulated in cl.187.233(3), which presumes an approved nomination. Consequently, Ms. Bala could not meet the primary criteria for the visa. The Tribunal confirmed with Ms. Bala, who was assisted by an interpreter, that she had completed advanced diplomas in Australia in the English language. Despite this, the fundamental impediment remained the lack of an approved nomination.