Khan (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Direct Entry stream, for the nominated position of Chef. The applicant sought to have a decision affirmed by the Administrative Appeals Tribunal (the Tribunal) reviewed. The Tribunal, constituted by Member Phoebe Dunn, considered evidence including email correspondence between the applicant, the nominator, and their migration agent, as well as screenshots of application details and financial statements of the nominating business.

The primary legal issue before the Tribunal was whether there was an approved nomination for the applicant's visa application. The applicant provided oral evidence detailing his migration journey, including prior study in Australia, a temporary residency visa application, and his engagement with the nominating business in Tasmania for the Chef position. He stated he was unaware the nomination had not been approved until receiving a letter from the Department of Home Affairs and that he was a victim of circumstances caused by others. The Tribunal also put information to the applicant under s.359AA of the Migration Act 1958 (Cth) to allow him an opportunity to comment on potential reasons for affirming the decision.

The Tribunal's reasoning focused on the requirements for the Subclass 187 visa in the Direct Entry stream, specifically referencing regulation 187.233(1) of the Migration Regulations 1994 (Cth). This regulation stipulates that the position must be nominated in an application for approval, and crucially, that the Minister must have approved the nomination. The Tribunal concluded that the applicant had not satisfied the criteria for the visa in the Direct Entry stream, as the requirements, including an approved nomination, had not been met.

Consequently, the Tribunal affirmed the decision not to grant the applicant the visa.