Gaudel (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the nominated position of ‘Chef’. The applicant sought review of a decision to refuse the visa. The Tribunal was required to determine whether the applicant satisfied the criteria for the grant of the visa, specifically clause 187.233.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 187.233 of the Migration Regulations 1994. This clause mandates that the nominated position must be the subject of an approved nomination, located in regional Australia, and be the position declared in the visa application. Furthermore, for nominations made on or after 1 July 2017, the nomination must identify the applicant in relation to the position. The clause also requires that the employer be the nominator, the nomination be approved and not withdrawn, that there be no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available to the applicant, and that the visa application is made within six months of the nomination's approval.

The Tribunal reasoned that the primary decision recorded that the nomination made by JACL NOMINEE PTY LTD for the position of ‘Chef’ was refused on 21 March 2018. As the applicant was not the subject of an approved nomination that corresponded with the declaration made in their visa application, they failed to satisfy clause 187.233. Consequently, as the first applicant did not meet the primary criteria for the visa, the second applicant, as a family member, could not satisfy the secondary criteria under clause 187.311.

The Tribunal affirmed the decision not to grant the applicants the Regional Employer Nomination (Permanent) (Class RN) visas.