Bains (Migration)

This decision concerns an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, for the position of Cook. The applicant, Ms Bains, sought review of the refusal of her visa application, which was heard jointly with the review of the related nomination application made by the prospective employer, PKJS (Australia) Pty Ltd. The Tribunal was required to determine whether the decision under review, which affirmed the refusal of the nomination application, should also be affirmed in relation to the visa application.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Clause 187.233, which pertains to the nomination of a position. This clause, as applicable, required that the position be the subject of an approved nomination, that the nominator be the intended employer, that the nomination had not been withdrawn, that there was no adverse information concerning the nominator or associated persons, that the position remained available, and that the visa application was made within six months of the nomination approval. The Tribunal also considered whether Mr Singh, as a member of the family unit, met the secondary visa criterion cl 187.311.

The Tribunal reasoned that the nomination application made by PKJS (Australia) Pty Ltd was refused on 18 January 2019, and this refusal was affirmed by the Tribunal on 4 May 2022. As the nomination was not approved and had been affirmed as refused, the requirement under cl 187.233(1) that the position be the subject of an approved nomination could not be met. Consequently, the Tribunal found that Ms Bains did not satisfy cl 187.233(3). The Tribunal also noted that if Ms Bains did not meet the primary criteria, Mr Singh would not meet the secondary criterion of being a member of the family unit of a person who satisfies the primary criteria.

The Tribunal concluded that the decision under review should be affirmed.