Sukhwinder Singh (Migration)

The Administrative Appeals Tribunal considered the application of Sukhwinder Singh for a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa, subclass 494, in the Employer Sponsored stream. The dispute arose because the applicant's nominated employer, Lawson Chinese Pty Ltd, had withdrawn its nomination application. The Tribunal, constituted by Alan McMurran, was tasked with determining whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant had an approved nomination by his sponsor, as required by clause 494.213 of Schedule 2 to the Migration Regulations. This clause mandates that the nomination identified in the application must have been approved under section 140GB of the Migration Act 1958, and that the approval must not have ceased. The Tribunal also considered whether the applicant's intention to perform the nominated occupation was genuine and if the position itself was genuine, though the central failure related to the nomination approval.

The Tribunal reasoned that the criteria for the subclass 494 visa, particularly clause 494.213, are mandatory and cannot be waived. It noted that the sponsor's application for review of the nomination withdrawal was itself withdrawn by the sponsor. As there was no approved nomination in favour of the applicant, and no further sponsorship application was before the Tribunal, the applicant could not satisfy this essential criterion. The Tribunal concluded that it had no jurisdiction to consider the review further in the absence of an approved nomination and that no further adjournment was warranted.

Consequently, the Tribunal affirmed the Department's decision not to grant the applicant the Skilled Employer Sponsored Regional (Provisional) (Class PE) visa.