1833010 (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The primary applicant, a Pastry Cook, sought review of a decision to refuse her visa application. The employer's nomination application had been refused, and their subsequent review application to the Tribunal was withdrawn. The Tribunal was asked to determine whether the primary applicant met the requirements for the visa.

The central legal issue before the Tribunal was whether the primary applicant satisfied criterion 186.223 of Schedule 2 to the Migration Regulations 1994. This criterion requires, among other things, that the nominated position be the subject of an approved nomination that has not been subsequently withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered whether the secondary applicants, as family members, met the criteria for the visa.

The Tribunal reasoned that the primary applicant did not meet the requirements of cl.186.223 because her employer's nomination application had been refused and the subsequent review application was withdrawn. This meant there was no approved nomination in place. The Tribunal had notified the applicants that this lack of an approved nomination would likely lead to the affirmation of the decision under review, as it indicated a failure to meet a key criterion for the visa. The Tribunal found that as the primary applicant did not satisfy the criteria for the visa, her family members also did not meet the requirements.

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