Kaur (Migration)

The applicant, Ms Kaur, sought a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for a Retail Manager position. The core of the dispute concerned whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, specifically relating to an approved nomination for the position. The decision was made by a Tribunal constituted by Michelle East.

The Tribunal was required to determine whether the applicant met the criteria under clause 187.233, which necessitates, among other things, that the nominated position be the subject of an approved nomination, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was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's approval. A key issue was the status of the nomination application, which had been refused by a delegate and subsequently affirmed by a differently constituted Tribunal, with an appeal pending before the Federal Circuit Court.

The Tribunal reasoned that while it had provided the applicant with particulars of the information that would lead to affirming the decision, and acknowledged the pending appeal to the Federal Circuit Court, it was not reasonable to defer its decision given the likely delay in finalising that appeal. The Tribunal noted that the nomination application lodged by The Trustee for MRP Foods Family Trust had not been approved at the time of the Tribunal's decision. Consequently, the Tribunal found that the applicant did not meet the requirements of clause 187.233. The Tribunal also affirmed the decision not to grant the second applicant a subclass 187 visa, as they did not meet the secondary criteria for family unit members and had not demonstrated they met the primary criteria in their own right.

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