Wihendra (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr Wihendra concerning his application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Temporary Residence Transition stream. The dispute arose because the sponsorship certification form was not submitted at the time of the nomination application, which the applicant attributed to an oversight by his migration agent. The AAT was required to determine whether the applicant met the criteria for the visa, specifically concerning the approval of the employer's nomination.

The central legal issue before the Tribunal was whether the applicant satisfied clause 187.223 of the Migration Regulations, which requires, among other things, that the employer's nomination has been approved and has not been subsequently withdrawn. The applicant argued that the failure to submit the sponsorship certification form was an error by his previous migration agent and that the employer, Eugene Cho Pty Ltd, had always met its obligations as a sponsor. The employer's owner provided a letter explaining the oversight and expressing a desire for the applicant to be granted the visa, noting that the initial refusal of the nomination was based on training benchmarks, not the missing form.

The Tribunal reasoned that clause 187.223(2) explicitly requires the Minister to have approved the nomination. As the nomination had not been approved by a delegate of the Minister and the subsequent review of that decision by the Tribunal was unsuccessful, the Tribunal concluded that the requirement for an approved nomination was not met. The Tribunal found that it had no discretion to overlook this mandatory criterion, regardless of the circumstances surrounding the failure to submit the required form or the employer's subsequent efforts to rectify the omission. Consequently, the Tribunal affirmed the decision not to grant the visa.