KAUR (Migration)

This matter concerned an appeal by Mrs Kaur against the Tribunal's decision to affirm the Minister's refusal to grant her and her husband Regional Employer Nomination (Permanent) (Class RN) visas. The core of the dispute revolved around the validity of the employer nomination for the visa subclass.

The legal issue before the Tribunal was whether the relevant nomination for the purposes of subclause 187.233 of Schedule 2 to the Migration Regulations 1994 had been approved and had not been subsequently withdrawn. This required the Tribunal to consider whether the nomination met the criteria that the nominated position was the subject of an application for approval, that the employer who made the nomination was the prospective employer, that the nomination had been approved and not withdrawn, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that a key requirement of subclause 187.233(4) of Schedule 2 is that the nomination must not have been subsequently withdrawn. The evidence before the Tribunal indicated that the application for approval of the nominated position of Cook made by AZ Catering had been withdrawn. The Tribunal noted the Full Federal Court's decision in *Singh v MIBP*, which held that the requirement in subclause 187.233 refers to a factual event, meaning the specific nomination in relation to which the applicant made the required declaration in their visa application. The Tribunal emphasised that it had no discretion and was bound to apply the law as it stood.

Consequently, the Tribunal affirmed the decision not to grant the visas. The Tribunal noted that Mrs Kaur could consider seeking ministerial intervention by providing a submission and evidence to the Minister for his consideration.