Khurana (Migration)

This matter concerned an appeal by Mr Arwinder Singh Khurana and secondary applicants against a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of their Regional Employer Nomination (Permanent) (Class RN) Subclass 187 visa application. The core of the dispute revolved around whether the applicants had satisfied the requirement under clause 187.233(3) of the Migration Regulations 1994 (Cth) that the Minister had approved the nomination.

The Tribunal was required to determine whether the applicants met the criteria for a Subclass 187 visa, specifically clause 187.233(3), which mandates that the nomination for the position must have been approved by the Minister. This clause, as applicable, required the nominated position to be located in regional Australia, be the subject of an approved nomination, and for the nominator to be the prospective employer. Further requirements included that the nomination had not been withdrawn, there was no adverse information concerning the nominator, the position remained available, and the visa application was lodged within six months of the nomination's approval.

The Tribunal's reasoning centred on the fact that the employer nomination by Mahabir Pty Ltd had not been approved, as the nominator failed to satisfy regulations 5.19(4)(a)(ii) and 5.19(4)(d). Consequently, the Tribunal found that clause 187.233(3) could not be met. The Tribunal had advised the applicant under section 359AA of the Migration Act 1958 (Cth) that this lack of an approved nomination would be a reason for affirming the decision. While the applicant sought to present new circumstances, including difficulties caused by COVID-19 and a desire to find a new employer, the Tribunal noted the significant delay since the review application was lodged in June 2019, concluding that the applicant had ample opportunity to secure a new nomination.

The Tribunal affirmed the decision under review.