Panchal (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream, for the applicant in the role of a Cook. The primary dispute before the Tribunal was whether the applicant's nominated position met the requirements for an approved nomination, a prerequisite for the visa grant. The secondary applicant, who was the applicant's partner, also sought a visa as a member of the family unit.

The legal issues before the Tribunal were whether the nominated position was the subject of an approved nomination, as required by clause 187.233 of the Migration Regulations 1994. This clause mandates that the nominating employer must have made the nomination, that the nomination must have been approved and not subsequently withdrawn, and that there must be no adverse information known to the Department of Immigration about the nominator or associated persons, or such information must be reasonable to disregard. Furthermore, the position must remain available to the applicant, and the visa application must have been lodged within six months of the nomination's approval. The Tribunal also had to determine if the secondary applicant qualified as a member of the family unit of the primary applicant.

The Tribunal affirmed the delegate's decision to refuse the visa. It noted that the application for approval of the nominated position had been refused, and this refusal had been affirmed by the Tribunal itself. This meant that the essential requirement of an approved nomination was not met. The Tribunal also considered the applicants' submission that the nominating employer was no longer operating and that the applicant had found a new employer. However, the Tribunal explained that a new nomination with a different employer would necessitate a new visa application, which was not the current proceeding. The Tribunal also found that the secondary applicant did not meet the criteria to be granted a Subclass 187 visa in her own right, nor was she a member of the family unit of a person who held such a visa.