AHASAN (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant sought to satisfy the criteria for this visa, with secondary applicants included as members of the same family unit. The core of the dispute revolved around the refusal of the employer's nomination, which was a prerequisite for the visa grant.

The primary legal issue before the Tribunal was whether the applicants met the criteria for the grant of a Subclass 186 visa, as stipulated in Schedule 2 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nomination of the position was approved and had not been withdrawn, if there was no adverse information concerning the nominator or associated persons, if the position remained available, and if the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that a critical requirement for the Subclass 186 visa, under clause 186.223(2), is the Minister's approval of the nomination. The Tribunal noted that in a related AAT case-file, it had decided to affirm the decision not to grant the nomination on 5 November 2021. Consequently, the Tribunal informed the applicant that without an approved nomination, the applicants could not satisfy the necessary criteria for the visa grant. The applicant acknowledged this understanding and accepted that the absence of an approved nomination would lead to the unsuccessful outcome of their visa application.

As the requirements for the Temporary Residence Transition stream had not been met due to the lack of an approved nomination, the Tribunal affirmed the decision under review. This meant the Subclass 186 visas were not granted to the primary and secondary applicants.