SAINI PTY LTD (Migration)

The Administrative Appeals Tribunal considered an application by Saini Pty Ltd for approval of a nomination for a skilled migration visa. The dispute centred on whether Saini Pty Ltd met the requirements for the Direct Entry nomination stream under regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominee, Mr Khosa, would be or could be employed in the nominated position on a full-time basis for at least two years, as required by regulation 5.19(4)(d). The Tribunal also considered whether the applicant had met the criteria for the Temporary Residence Transition Nomination stream under regulation 5.19(3).

Deputy President J.L. Redfern PSM determined that Saini Pty Ltd had not satisfied regulation 5.19(4)(d) because Mr Khosa could not be granted the relevant visa subclass, and therefore could not be employed on a full-time basis for the required period. The Tribunal noted that the visa subclass was closed by operation of law and that the applicant's submissions regarding Mr Khosa's skills, potential future employment, or the impact of the COVID-19 pandemic were irrelevant to the determination of whether the nomination criteria were met. As all requirements of regulation 5.19(4) must be met, and one requirement was not satisfied, the Tribunal did not consider the remaining criteria. Furthermore, the applicant had not sought to satisfy the criteria for the Temporary Residence Transition Nomination stream.

Accordingly, the Tribunal affirmed the delegate's decision to refuse the nomination.