Abiad (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically within the Temporary Residence Transition stream. The applicant sought review of a decision to refuse the visa. The Administrative Appeals Tribunal (AAT), with Member Stavros Georgiadis presiding, was tasked with determining whether the applicant met the criteria for the visa grant as stipulated in Schedule 2 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 186.223 of the Migration Regulations 1994, which pertains to the nomination of a position for applicants in the Temporary Residence Transition stream. This clause mandates that the nominated position must have been approved, the applicant identified as the relevant Subclass 457 visa holder, and that the nomination has not been withdrawn, no adverse information exists regarding the nominator or associated persons, the position remains available, and the visa application was lodged within six months of the nomination's approval.

The Tribunal examined the evidence and found that while the applicant had been identified in the nomination by Digimob Australia Pty Ltd as the relevant Subclass 457 visa holder for the nominated position, a crucial prerequisite was the approval of that nomination. The Tribunal noted that in a related AAT case, an oral decision had been made on 6 June 2018 to refuse the nomination under regulation 5.19. The Tribunal informed the applicant of this prior decision and its implications for their visa application, specifically that without an approved nomination, the criteria under clause 186.223(2) could not be met. The applicant was given an opportunity to comment on this information.

As the Tribunal concluded that the applicant had not met the necessary criteria for the Subclass 186 visa in the Temporary Residence Transition stream, primarily due to the refusal of the nomination, the decision under review was affirmed. Consequently, the Tribunal affirmed the decision not to grant the applicant the visa.