1512534 (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa. The applicant sought to have a decision not to grant her visa affirmed. The core of the dispute concerned whether the nominated position to which the applicant's visa application related was an approved nominated position as required by the relevant migration regulations.

The Tribunal was required to determine if the applicant had satisfied the criteria under clause 186.233 of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the nominated position had been approved and if the nomination had not been subsequently withdrawn, among other requirements. The Tribunal also considered the applicant's requests for a delay to find an alternative sponsor, a referral to the Minister for Ministerial intervention, and whether it had the power to waive essential criteria.

The Tribunal reasoned that clause 186.233 mandates that the nominated position must have been approved and the relevant nomination must not have been refused or withdrawn. In this case, the nomination application was refused by a delegate of the Department, and this refusal was affirmed by the Tribunal itself. The Tribunal noted that it did not have the power to waive essential criteria and that a potential alternative sponsor would not alter the outcome given the fundamental failure to meet the nomination approval requirement. The Tribunal also decided not to refer the matter for Ministerial intervention under section 417 of the Migration Act 1958.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.