Adhikari (Migration)

This matter concerned an appeal by Ms Adhikari, the primary applicant, and a secondary applicant, in relation to the refusal of their applications for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream. The Tribunal was required to determine whether the decision under review, which affirmed the refusal of the visa applications, should be upheld.

The central legal issue before the Tribunal was whether the requirements of clause 187.233 of the Migration Regulations 1994 had been met, specifically concerning the approval of a nomination for the position of office manager. This clause mandates that the position must be the subject of an approved nomination, that the nominator must be the prospective employer, that the nomination must not have been withdrawn, and that the position must still be available to the applicant. The Tribunal also considered whether the secondary applicant, as a member of the primary applicant's family unit, could be granted a visa when the primary applicant had not met the criteria.

The Tribunal reasoned that the nomination application lodged by the nominator was refused on 21 December 2018, and this refusal was affirmed by the Tribunal on 14 December 2021. Despite the nominator ceasing to trade in May 2020 due to the COVID-19 pandemic, and the applicant's employment ending through no fault of her own, the critical factor was the refusal and subsequent affirmation of the nomination. As the nomination was not approved, clause 187.233 was not satisfied. Consequently, the Tribunal found that the primary applicant had not met the requirements for the visa.

Given that the primary applicant had failed to meet the criteria for the Subclass 187 visa, the Tribunal concluded that the secondary applicant, as a member of the family unit, could not satisfy criterion 187.311(a). Accordingly, the Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to either applicant.