Harjeet Kaur (Migration)

This matter concerned an appeal by Harjeet Kaur and other visa applicants against a decision to refuse their applications for Regional Employer Nomination (Permanent) (Class RN) visas, subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The primary applicant was seeking to be employed as a Cook. The Administrative Appeals Tribunal (AAT) was required to determine whether the visa applicants met the criteria for the grant of these visas.

The central 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 located in regional Australia, be the subject of an approved nomination, and that the nominator must be the prospective employer. Further requirements, particularly for nominations made after 1 July 2017, include the nomination identifying the applicant, the nomination not being withdrawn, no adverse information being known to the Department of Immigration about the nominator or associated persons (or such information being disregardable), the position remaining available, and the visa application being lodged within six months of the nomination's approval.

The Tribunal considered the evidence and found that while the nominator, Settlers Pty Ltd, had made the required declaration for the Cook position and was the prospective employer, and that the position remained available and had not been withdrawn, a critical criterion was not met. The Tribunal noted that on 21 May 2019, it had decided to affirm a separate decision refusing the nomination itself under regulation 5.19(4). As an approved nomination was a prerequisite for meeting clause 187.233(3), the failure to secure an approved nomination meant the primary visa applicants could not satisfy the necessary criteria for the grant of their visas. Furthermore, the Tribunal found that the remaining applicants, identified as the applicant's spouse and daughter, did not satisfy clause 187.311 as they were not members of the family unit of a person who held a subclass 187 visa granted on the basis of satisfying the primary criteria.

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