KAUR (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the temporary residence transition stream, made by an applicant employed as a café or restaurant manager. The applicant's employer, Sardana Family Trust & K Sharma & Y Shelli, had lodged a nomination application which was subsequently refused by the Tribunal on 11 October 2023, due to failing to meet the training benchmark criteria. The primary applicant's visa application was therefore unable to succeed without an approved nomination.

The legal issue before the Tribunal was whether the applicant satisfied the criteria for a Subclass 187 visa in the Temporary Residence Transition stream, specifically clause 187.223, which requires, among other things, that the nominated position be the subject of an approved nomination that has not been withdrawn, and that there is no adverse information known to Immigration about the nominator or associated persons. The Tribunal also considered the eligibility of secondary applicants who were members of the primary applicant's family unit.

The Tribunal reasoned that as the sponsor's nomination application had been refused, the requirement for an approved nomination under clause 187.223 was not met. Consequently, the primary applicant could not satisfy the criteria for the visa. Given that the secondary applicants' eligibility was contingent on the primary applicant meeting the criteria, their applications also failed. The Tribunal noted that the primary applicant's child is an Australian citizen and recommended that the case be referred to the Minister for consideration under section 351 of the Migration Act 1958 (Cth) for potential discretionary intervention, acknowledging that the affirmation of the nomination decision was without fault of the applicants.

The Tribunal affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to the applicants and recommended that the Minister consider intervening under section 351 of the Act if deemed appropriate.