Timalsina (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning applications for Regional Employer Nomination (Permanent) (Class RN) visas, Subclass 187, Temporary Residence Transition stream, made by Mrs Timalsina and Mr Kanda. The primary dispute revolved around whether Mrs Timalsina met the requirements of clause 187.223 of Schedule 2 to the Migration Regulations 1994, specifically concerning an approved nomination for a Cafe or Restaurant Manager position.

The Tribunal was required to determine if the nomination for Mrs Timalsina's position had been approved and remained valid, and consequently, whether Mrs Timalsina met the criteria for the Subclass 187 visa. A further issue was whether Mr Kanda, as a member of Mrs Timalsina's family unit, could meet the criteria for the visa, given that his eligibility was contingent on Mrs Timalsina meeting the primary criteria.

The Tribunal reasoned that a key requirement for the visa under clause 187.223(2) is that the nomination must have been approved by the Minister. The evidence before the Tribunal indicated that the Department had refused the employer's nomination on 10 December 2019, and although the employer sought review of this refusal, they subsequently withdrew their application for review on 21 August 2023. The applicants failed to respond to the Tribunal's invitation to comment on this information. Applying the principle from *Singh v MIBP* [2017] FCAFC 105, that the nomination approval is a "once off" process, the Tribunal found that as the nomination had not been approved, Mrs Timalsina did not meet the criteria in cl 187.223.

Consequently, as Mrs Timalsina did not meet the primary criteria for the visa, Mr Kanda, whose application was based on being a member of her family unit, also could not meet the criteria. The Tribunal affirmed the Department's decision to refuse both applicants' Subclass 187 visa applications.