Shrestha (Migration)

The Administrative Appeals Tribunal (AAT) considered the application of Mr. Shrestha for a Skilled Regional Sponsored (Provisional) visa (subclass 489). The dispute arose because the nominating state or territory had withdrawn its nomination for Mr. Shrestha's visa application, and no alternative nomination had been accepted.

The primary legal issue before the Tribunal was whether the applicant could satisfy the criteria for the visa in the absence of an approved nomination. Specifically, the Tribunal had to determine if clauses 489.225(2) and 489.225(3) of the Migration Regulations 1994 could be met when a nomination was withdrawn and not replaced. The Tribunal also considered the secondary criteria under clause 489.311.

The Tribunal reasoned that clauses 489.225(2) and 489.225(3) are mandatory requirements for the visa. It found that these clauses could not be satisfied if a nomination had been withdrawn and no new nomination had been accepted. As there was no evidence before the Tribunal that the applicant met the secondary criteria in clause 489.311, the Tribunal concluded that it had no discretion to grant the visa.

Consequently, the Tribunal affirmed the decision not to grant Mr. Shrestha the Skilled Regional Sponsored (Provisional) visa.