Malhotra (Migration)

This matter concerned an appeal by Mr Jatin Malhotra against a decision of the Department of Immigration and Border Protection to refuse his Subclass 187 (Regional Sponsored Migration Scheme) visa application. The refusal was based on the fact that the nomination application made by his sponsoring employer, Matt Varis Family Trust, for the position of Retail Manager (General) had not been approved. The Administrative Appeals Tribunal (AAT) was required to review both the refusal of the nomination and the visa application.

The primary legal issue before the Tribunal was whether the nomination made by Matt Varis Family Trust for the position of Retail Manager (General) had been approved, as required by clause 187.233 of the Migration Regulations. This was a crucial element for Mr Malhotra to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. The Tribunal also considered whether Mr Malhotra was entitled to appear before it, given his lack of response to a section 359A invitation.

The Tribunal reasoned that the Department had refused the nomination application because it did not satisfy specific regulatory requirements, namely r.5.19(4)(h)(ii)(D) or r.5.19(4)(h)(i). Consequently, Mr Malhotra's visa application was refused as the nomination was not approved. The Tribunal issued a section 359A notice to Mr Malhotra, advising him that the nomination had been affirmed as refused and that without an approved nomination, he could not satisfy clause 187.233(3). He was invited to provide a written response by 31 July 2019, but failed to do so. In accordance with section 359C and 360(3) of the Migration Act 1958 (Cth), Mr Malhotra was therefore not entitled to appear before the Tribunal, and the Tribunal proceeded to make a decision without further information.

As the requirements for the Direct Entry stream of the Subclass 187 visa had not been met, specifically the requirement for an approved nomination, the Tribunal affirmed the Department's decision to refuse the visa.