Singh (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Regional Sponsored Migration Scheme, Direct Entry stream, for the position of Café Manager. The applicant, Mr. Singh, sought review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of his employer's nomination. The core of the dispute revolved around whether the employer, The Downtown Café Pty Ltd, had an approved nomination that met the requirements of the relevant migration regulations.

The primary legal issue before the court was whether the applicant satisfied clause 187.233(3) of the Migration Regulations 1994, which requires that the Minister has approved the nomination. This clause, as applied in this case, necessitates that the nominated position be the subject of an approved nomination in regional Australia, that the employer who made the nomination is the one who will employ the applicant, and that the nomination has not been withdrawn. Furthermore, it requires that there be no adverse information known to Immigration about the nominator or associated persons, or that such information is reasonable to disregard, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the employer did not have the financial capacity to employ the applicant on a full-time basis for at least two years, as required by regulation 5.19(4)(d)(i). This conclusion was based on the employer's tax losses for the 2021 financial year and a forecast profit for the 2022 financial year that became a loss when projected wages were included. The Tribunal considered that this lack of financial capacity meant there was not an approved employer nomination that satisfied clause 187.233(3). The Tribunal also advised the applicant of this potential reason for affirming the decision under section 359AA of the Migration Act 1958 (Cth), providing an opportunity to respond.

The Tribunal concluded that the decision under review should be affirmed. This outcome was reached after the Tribunal considered the employer's financial position and determined that it did not meet the necessary criteria for an approved nomination, thereby preventing the applicant from satisfying the requirements for the visa.