Thakur (Migration)

This matter concerned an appeal by the applicant, Mr. Thakur, against the Tribunal's decision to affirm the refusal of his Regional Employer Nomination (Permanent) visa (Subclass 187). The applicant's visa application was based on a nomination by Bikaner India WA Pty Ltd. However, the Department had previously refused this nomination, a decision which was not reviewed by the nominator. Furthermore, the nominating entity had since been deregistered. The applicant stated he had ceased working for the nominator after the initial visa refusal and that the business had closed, leaving him employed as a courier driver.

The primary legal issues before the Tribunal were whether the employer nomination had been approved as required by clause 187.233 of the Migration Regulations 1994, and whether the applicant met the requirements of Public Interest Criterion (PIC) 4020(1), or if a waiver of PIC 4020(1) should be granted. The Tribunal was required to consider the implications of the refused nomination and the deregistered nominator on the applicant's eligibility for the visa. Additionally, the Tribunal had to assess if any compassionate or compelling circumstances, particularly concerning the applicant's Australian citizen children, warranted a waiver of the public interest criteria.

The Tribunal reasoned that the requirement for an approved nomination under clause 187.233 was not met, as the nomination had been refused by the Department and this decision remained in effect. The deregistration of the nominator further underscored the unavailability of the nominated position. The Tribunal also noted evidence suggesting the applicant may have provided a false IELTS test report, potentially engaging PIC 4020(1). While the applicant presented his desire to remain in Australia for his children and alluded to the impact of the COVID-19 pandemic, the Tribunal found these circumstances did not meet the threshold for a waiver under PIC 4020(4).

Consequently, the Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) visa to the applicant. The Tribunal noted that the third applicant, Miss Avni Thakur, being an Australian citizen, was unaffected by this decision.