Chahal (Migration)

The Administrative Appeals Tribunal considered an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, Direct Entry stream. The applicant sought review of a decision to refuse their visa application, which was based on a nomination for the position of Restaurant Manager by Spice Chef Pty Ltd. The applicant's family members were also applicants, seeking to satisfy secondary criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 187.233(3) of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nominated position be the subject of an approved nomination application, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal noted that the nomination application made by Spice Chef Pty Ltd was refused by the Department on 29 July 2019. While Spice Chef Pty Ltd applied to the Tribunal for a review of this refusal, the Tribunal found it lacked jurisdiction to review the nomination refusal because Spice Chef Pty Ltd was deregistered on 22 April 2022, prior to the Tribunal's hearing. The applicant stated the business closed in 2022 due to the COVID-19 pandemic and the owner's actions. As the nomination had not been approved, the Tribunal concluded that the applicant did not meet clause 187.233(3).

Consequently, the Tribunal affirmed the decision not to grant the visa. As the primary applicant did not satisfy the criteria, the Tribunal also found that the secondary applicants, who relied on the primary applicant's eligibility, did not meet the criteria for the visa.