Khan (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for the position of Café or Restaurant Manager. The applicant sought review of a decision to refuse the visa. The Tribunal, constituted by Jennifer Cripps Watts, was required to determine whether the nomination for the position by Rose View Corporate Pty Ltd had been approved, as this was a key criterion for the visa.

The central legal issue was whether the applicant's nomination for the position of Café or Restaurant Manager met the requirements of clause 187.233 of the Migration Regulations. This clause mandates that the nominated position must be located in regional Australia, be the subject of an approved nomination, and, for nominations made on or after 1 July 2017, identify the applicant in relation to the position. Further requirements include that the nominator must be the prospective employer, the nomination must not have been withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonable to disregard), the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal found that department records indicated the nomination relating to the visa application was refused on 17 October 2018. While an application for review was lodged and a previous Tribunal decision found no jurisdiction, the Tribunal subsequently provided the applicant with notice of adverse information, specifically stating that it appeared the application was not the subject of an approved nomination by Rose View Corporation. The Tribunal concluded that, as the nomination was refused and not approved, the applicant did not meet the requirements of clause 187.233. Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 187 visa. The secondary applicant's visa refusal was also affirmed as the primary applicant's visa was refused.