Kiran Pal Kaur (Migration)

This matter concerned an appeal by Kiran Pal Kaur and two other applicants against the refusal of their applications for Regional Employer Nomination (Permanent) (Class RN) visas, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The primary applicant, Kiran Pal Kaur, sought to satisfy the criteria for the visa based on a nomination for the position of Cook by FATHE GROUP PTY LTD. The two other applicants sought to be granted the visa as members of the family unit of the primary applicant. The decision under review was made by the Administrative Appeals Tribunal.

The central legal issue before the Tribunal was whether the nomination associated with Kiran Pal Kaur's visa application had been approved, as required by clause 187.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines several criteria for an approved nomination, including that the position must be identified in the nomination, the nominator must be the prospective employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to the Department or such information must be disregarded, the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the nomination application made by FATHE GROUP PTY LTD was refused by the Department on 8 March 2018. FATHE GROUP PTY LTD subsequently sought review of this refusal by the Tribunal, but the Tribunal found it had no jurisdiction in relation to that application on 12 February 2020. Consequently, the Department's decision to refuse the nomination remained unchanged. As the nomination had not been approved, the Tribunal concluded that Kiran Pal Kaur had not met the requirements of clause 187.233(2) and the overall criteria of clause 187.233. Furthermore, as the primary applicant did not meet the essential visa requirements, and there was no evidence that the other applicants met them independently, the Tribunal affirmed the decision in respect of all three applicants.