Kaur (Migration)

This matter concerned an appeal by Ms Kaur against a decision to refuse her Subclass 187 (Regional Sponsored Migration Scheme) visa under the Direct Entry stream. The core of the dispute revolved around the validity of the nomination lodged by the proposed employer, Hospital Technologies Pty Ltd. The Department of Home Affairs had initially refused the nomination, a decision that was subsequently affirmed by the Tribunal on 17 September 2020.

The primary legal issue before the Tribunal was whether Ms Kaur met the criteria for the Subclass 187 visa, specifically clause 187.233, which requires the position to be the subject of an approved nomination. The Tribunal was required to determine if the refusal of the nomination by the Department, and the subsequent affirmation of that refusal by the Tribunal, meant that the nomination had not been approved and therefore that Ms Kaur could not satisfy this essential visa requirement.

The Tribunal reasoned that a fundamental requirement for the grant of a Subclass 187 visa in the Direct Entry stream is that the nomination must have been approved and not subsequently withdrawn. As the nomination lodged by Hospital Technologies Pty Ltd had been refused by the Department and this refusal was upheld by the Tribunal, the nomination was not approved. Consequently, Ms Kaur could not satisfy the criterion that the position be the subject of an approved nomination.

Accordingly, the Tribunal affirmed the decision not to grant Ms Kaur the Subclass 187 visa, as she had failed to meet the prescribed requirements for the visa in the Direct Entry stream.