Khan (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187, direct entry stream, for a cook. The applicant sought to have the decision of the Department of Home Affairs to refuse their visa application reviewed by the Tribunal. The Tribunal was required to determine whether the applicant met the requirements of clause 187.233 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the nominated position met the criteria set out in clause 187.233. Specifically, the Tribunal had to consider whether the nomination had been approved and had not been subsequently withdrawn, and whether the visa application was made within six months of the nomination's approval. The Tribunal also considered the eligibility of secondary applicants who applied as members of the applicant's family unit.

The Tribunal reasoned that clause 187.233(3) requires the Minister to have approved the nomination. In this case, the Tribunal found that the nomination made by MD Bros Pty Ltd had been refused, meaning it was not approved. Consequently, the Tribunal concluded that clause 187.233(3) was not met. As the applicant had only sought to satisfy the criteria for the direct entry stream and had failed to meet this essential requirement, the Tribunal found that the applicant did not meet the requirements for the visa. Furthermore, the secondary applicants' claims were based on being a member of the family unit of a person holding a subclass 187 visa. As the primary applicant did not hold such a visa, the secondary applicants did not meet clause 187.311.

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