Kaur (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, Direct Entry stream, by Ms Kaur. The applicant's employer, Ghendola Syam Preethi, had nominated her for the visa. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, specifically clause 187.233.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination for the position for which she sought the visa. This involved considering the requirements of clause 187.233, which mandates that the position must be the subject of an approved nomination, that the nominator must be the prospective employer, and that the nomination must not have been withdrawn. The Tribunal also had to consider whether a subsequent nomination, if one existed, could satisfy the criterion, given that the original nomination had been refused and that refusal affirmed.

The Tribunal reasoned that the applicant could not satisfy clause 187.233 because her employer's nomination had been refused by the Department and this refusal was affirmed by the Tribunal on 17 June 2022, meaning the refusal decision stood. Consequently, the applicant was not the subject of an approved nomination. The Tribunal relied on the reasoning in *Singh v Minister for Immigration and Border Protection* [2017] FCAFC 105, which held that the criterion refers to a specific factual event – the nomination in relation to which the visa applicant made a declaration. Therefore, even a new nomination for the same position would not satisfy the criterion, as it would not be the nomination in relation to which the declaration was made. The Tribunal concluded that the applicant had not met the requirements for the Direct Entry stream of the subclass 187 visa.

The Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, Direct Entry stream, as the applicant had failed to satisfy the relevant visa criteria.