[187] employer nomination refused, who should appeal?

[choochoowen]

Hi,
I'm collecting information on behalf of my girlfriend who just got her visa refused (she's doing her own research as well).
Thanks in advance for any help and suggestions!

Visa she applied for: 187 (as a Cafe Manager)

Reason: employer nomination refused

Nationality: Taiwan

Facts:
the refusal reason are based on an interview the Immigration Officer had with her employer. The employer answered the questions without too much thinking because she was driving. The officer stated that the employer doesn't need a Cafe Manager!
It's all very easy to prove the Officer wrong because some of the motivations in the letter (refusal notice) are simply not true and the employer can easily debunk all of that.
They interview was conducted in a very unprofessional manner according to her employer, there's no doubt.

Questions:
- who should lodge for the review at the AAT: her or the employer?
(they are in a very good relation, and she really work as a manager, it's not a huge cafe and the employer is a bit of control freak so for example she's the one who like to do the rosters!).
- is any complain regarding the professionalism of the Immigration officer worth any time and help for her application?

Some side facts:
she applied through a migration agent, who's hard to reach and not able to answer the most basic questions (the office is not in the same town, we'll try to surprise-visit her the next days).

Sad facts:
she apply while being on a 457 visa so her current visa for nearly 2 year "Bridge C" that won't let her to leave Australia (apparently if she was going anywhere she didn't have any guarantee that she'd get a temporarty/tourist visa while waiting for the outcome of the visa application).
So if she now applies, the estimated average come for an outcome from the tribunal is 2 years (all together 4 years that she couldn't visit her home town/relatives). Any ideas, if there are circumstances that will let her visit her family?

Cheers

[Ausvisitor]

The problem is that things like determining staffing rosters etc. Is part of the definition of cafe manager. The fact the owner said they did this themselves (and you've said they want to keep doing it) makes me think they want a "supervisor" not a manager and so I would suggest that the decision was right based on immigrations definition of what is required for the role and what the employer described the role as

[Wonderingaloud]

Did you apply for the visa as well as the nomination? If so, you need to withdraw the visa before it is refused as it cannot be processed without a nomination. 

Re the nomination- your employer applied for this so they are the ones who need to appeal the decision. 

Your agent should be a MARA registered migration agent, not a ‘lawyer’ or someone else unregistered. If they are not, find someone who is. If she cannot answer (in your own words) even basic questions, why are you using this person? Now the nomination has been refused the agent needs to be skilled in AAT and knowing what documents are needed to refute the decision by immigration. This adds up to another level of complexity, you need a strong case to overturn a ruling by appeal.

Even if immigration were unprofessional, complaining about this won’t change the outcome of the decision. Especially as you said yourself- the owner is a control freak and wants to do some things herself that overlap with the responsibility of a cafe manager. It sounds like your employer needs to read the requirements of the position and decide if they really do need a cafe manager (by immigrations definition) because as Ausvisitor above says, they’ve made the right decision so far.

[Raul Senise]

On 22/06/2019 at 16:32, choochoowen said:

Questions:
- who should lodge for the review at the AAT: her or the employer?

The refusal of the nomination needs to be appealed by the applicant, which is the nominating employer.

Once the visa is refused, your girlfriend will need to lodge an appeal of the visa refusal.

On 22/06/2019 at 16:32, choochoowen said:

she apply while being on a 457 visa so her current visa for nearly 2 year "Bridge C

The fact that she is on a BVC means the situation is more complex than you are stating or maybe know. 

If she had applied for a 187 from a 457 she would be on a BVA not a BVC. 

On 22/06/2019 at 18:40, Wonderingaloud said:

Did you apply for the visa as well as the nomination? If so, you need to withdraw the visa before it is refused as it cannot be processed without a nomination. 

Why withdraw the visa? If she is on a BVC and withdraws, she will likely have to leave the country.