Kaur (Migration)

The Administrative Appeals Tribunal considered the case of Kaur (Migration), where the applicant sought review of a decision to refuse a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the direct entry scheme. The primary applicant had applied for this visa, with other family members included as members of the family unit.

The central legal issue before the Tribunal was whether an approved nomination for the position existed, as this is a fundamental requirement for the grant of a Subclass 187 visa under the direct entry stream. The Tribunal was required to determine if the applicant had satisfied this criterion, along with other associated requirements outlined in clause 187.233 of the Migration Regulations.

The Tribunal's reasoning focused on the undisputed fact that the nomination application had been refused by the Department. The Tribunal provided the applicant with particulars of this information and invited comment, which the applicant declined, indicating a wish to proceed. As an approved nomination is a mandatory criterion for the visa, and this criterion was not met, the Tribunal concluded that the decision under review must be affirmed. Furthermore, the Tribunal affirmed the refusal for the secondary applicants as they did not meet the criteria to be a member of the family unit of a Subclass 187 visa holder and could not meet the primary criteria themselves.

The Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to the applicants. However, the Tribunal noted that it had considered the ministerial guidelines relating to discretionary power and would refer the matter to the Department for further consideration.