Kaur (Migration)

The Administrative Appeals Tribunal considered the case of Ms Kaur, who sought review of a decision to refuse her application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant's employer, Falcon Financial Services Pty Ltd, had also sought review of the Department's refusal to approve its nomination of Ms Kaur for the Office Manager position. The Tribunal affirmed the Department's decision not to approve the nomination.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994, specifically concerning the nomination of the position. This clause requires that the position to which the visa application relates must be the one that was the subject of an approved nomination, and that the visa application must be made within six months of the nomination's approval. The Tribunal also considered whether the applicant and her accompanying family members met the secondary criteria for the visa.

The Tribunal reasoned that a crucial requirement for the Direct Entry stream of the subclass 187 visa is that the position for which the visa is sought must be the same position that was nominated and approved. In this instance, the Department had refused to approve the employer's nomination, and the Tribunal had subsequently affirmed that refusal. The Tribunal noted that current authority and departmental policy indicate that even a new nomination for the same position by the same employer, or any nomination by a different employer, could not satisfy the criteria for the visa application, as it would not relate to the position in respect of which the original declaration was made. Furthermore, the Tribunal found that the second and third named applicants, who were family members, did not meet the secondary criteria for being members of the family unit of a visa holder, nor had they demonstrated they met the primary visa criteria in their own right.

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