Khatibi (Migration)

This matter concerned an appeal by the applicant against the Tribunal's decision to affirm the refusal of a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187. The applicant sought to rely on the Direct Entry stream of the visa subclass.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the nominated position must be the subject of an approved nomination application, that the nominator must be the intended employer, that there must be no adverse information known to the Department about the nominator or associated persons, that the position must remain available to the applicant, and that the visa application must be made within six months of the nomination's approval. The Tribunal also considered whether the applicant met the criteria for the Temporary Residence Transition Stream, the Agreement stream, and the secondary criteria.

The Tribunal found that the nomination application lodged by Delicate Roses P/L was refused on 28 November 2016. The Department had sought comments from the applicant regarding this refusal, but no contrary evidence was lodged. Consequently, the delegate determined that clause 187.233(3) was not met, and therefore the applicant did not satisfy clause 187.233. The Tribunal further found that the applicant did not meet the criteria for the Temporary Residence Transition Stream, as the nomination only sought to meet the requirements of subregulation 5.19(4), not subregulation 5.19(3). Similarly, the applicant failed to meet the criteria for the Agreement stream, as the nomination did not comply with the requirements for that stream. Finally, the Tribunal considered the secondary criteria under clause 187.311, noting that neither the applicant nor any family member was a member of the family unit of a person who held a subclass 186 visa granted on the basis of satisfying the primary criteria.

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