Adhikary (Migration)

This matter concerned an application for review of a decision by the delegate of the Minister for Home Affairs to refuse to grant Employer Nomination (Permanent) (Class EN) visas under section 65 of the *Migration Act 1958*. The applicants had applied for subclass 186 visas, specifically under the Temporary Residence Transition stream, for the nominated position of Restaurant or Cafe Manager. The Administrative Appeals Tribunal (AAT) was required to determine whether the decision to refuse the visas should be affirmed.

The central legal issue before the Tribunal was whether the applicants met the criteria for the subclass 186 visa, particularly clause 186.223 of Schedule 2 to the *Migration Regulations*. This clause requires that the nominated position be the subject of an approved nomination. The applicants did not dispute that the nomination for the position had been refused, and that this refusal had been affirmed on review by the AAT.

The Tribunal reasoned that a prerequisite for the grant of the visa under the Temporary Residence Transition stream was an approved nomination for the position. As the nomination had been refused and this decision was not challenged by the applicants, they could not satisfy this essential criterion. While the applicants presented compassionate considerations for remaining in Australia, these did not overcome the failure to meet the regulatory requirement for an approved nomination. Consequently, the Tribunal concluded that the decision under review should be affirmed.