KAUR (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse a Subclass 187 Regional Sponsored Migration Scheme visa (Direct Entry stream) to the applicant, Ms Kaur. The dispute arose because the nomination for the position of café and restaurant manager, which was central to Ms Kaur's visa application, was refused by the Minister. Ms Kaur did not respond to a natural justice letter inviting her to comment on the nomination refusal, and consequently, her visa application was refused on the grounds that it was not supported by an approved nomination.

The primary legal issue before the Tribunal was whether the position to which Ms Kaur's visa application related was the subject of an approved nomination by the Minister, as required by subclause 187.233(3) of the Migration Regulations. This subclause, as applicable at the time, stipulated several conditions for an approved nomination, including that the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available, and the visa application must be lodged within six months of the nomination approval.

The Tribunal reasoned that the evidence clearly showed the nomination lodged by Rupinder Kaur was refused by the Minister on 15 August 2016. As Ms Kaur did not respond to the invitation to comment on this refusal, the delegate correctly determined that she did not meet the requirement of having an approved nomination. The Tribunal also considered the secondary applicants, who were seeking visas as members of Ms Kaur's family unit. It found that they did not satisfy clause 187.311, which requires them to be members of the family unit of a person who holds a Subclass 187 visa and has satisfied the primary criteria.

Accordingly, the Tribunal affirmed the decision to refuse Ms Kaur's Subclass 187 visa and the visas of the secondary applicants.