Nirmaljit Kaur (Migration)

This matter concerned an appeal by Ms Nirmaljit Kaur and her family unit against the refusal of their Subclass 187 Regional Employer Nomination (Permanent) visas. The original nominator, Trustee for the Xhihi Family Trust, had applied for approval of a nomination for the position of Pastry Cook. The Department refused this nomination, and consequently, Ms Kaur's visa application was also refused. The Administrative Appeals Tribunal (AAT) affirmed the Department's decision to refuse the nomination approval.

The primary legal issue before the AAT was whether the nomination for the position of Pastry Cook met the requirements of the Migration Regulations 1994, specifically concerning the Direct Entry stream of the Subclass 187 visa. This involved determining if the nominated position was still available and if the nomination itself had been approved and not subsequently withdrawn, as required by the relevant clauses of the regulations. The Tribunal also considered whether the applicant could satisfy the criteria for the visa in the absence of an approved nomination.

The Tribunal reasoned that for a Subclass 187 visa in the Direct Entry stream, the nominated position must have been approved under the relevant regulations, and the nominator must be the prospective employer. The evidence presented indicated that the original nominator was no longer in business, and the business had been sold. Consequently, the nomination could not be approved, and the position was no longer available in the manner required by the regulations. The Tribunal noted that without an approved nomination, the applicant could not satisfy clause 187.233(3) of the Migration Regulations, which is a prerequisite for visa grant.

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