Kusuma (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning the refusal of Regional Employer Nomination (Permanent) (Class RN) visas, Subclass 187, direct entry stream, for a cook and their family members. The primary applicant's associated nomination application had been refused by the Department, and this refusal was affirmed by the Tribunal. The review applicants did not provide any comments or attend the hearing.

The central legal issue before the Tribunal was whether the primary applicant met the criteria for the Subclass 187 visa, specifically whether the nominated position was the subject of an approved nomination. The Tribunal was required to consider clause 187.233 of Schedule 2 to the Migration Regulations 1994, which outlines the requirements for an approved nomination, including that the nomination must have been approved and not subsequently withdrawn, and that the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that as the nominator's application for approval of the nominated position had been refused by the Department and this decision was affirmed on review, the primary applicant could not satisfy the criterion that the position be the subject of an approved nomination. The Tribunal relied on the Federal Court's decision in *Singh v MIBP* [2017] FCAFC 105, which emphasised that the visa application is assessed against a specific, approved employer nomination. Consequently, the Tribunal found that the primary applicant did not meet the criteria in cl.187.233(3).

Pursuant to clause 187.311, the Tribunal also affirmed the decisions to refuse visas to the secondary applicants, as they were not members of the family unit of a Subclass 187 visa holder and had not met the primary criteria in their own right. The Tribunal therefore affirmed the decision not to grant the Regional Employer Nomination (Permanent) (Class RN) visas to the applicants.