AKTER (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The primary applicant sought the visa based on a nomination made by Tasne Enterprise Pty Ltd. The secondary applicants sought the visa as members of the primary applicant's family unit.

The central legal issue before the Tribunal was whether the primary applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically whether the associated nomination had been approved. The Tribunal was also required to determine if the secondary applicants met the primary requirements for the visa.

The Tribunal reasoned that departmental records indicated the nomination was refused on 11 October 2017, and the applicant did not respond to a subsequent natural justice letter. While the nominator had sought review of the nomination refusal, this review application was withdrawn. The Tribunal noted that clause 186.223(2) requires the Minister to have approved the nomination, and in the absence of an approved nomination and with the review withdrawn, the applicant could not meet this criterion. The Tribunal acknowledged the applicant's submissions regarding unpaid work entitlements and personal difficulties but stated it had no discretion to overlook the mandatory requirement for an approved nomination. As the primary applicant did not meet the visa requirements, the Tribunal also found that the secondary applicants could not meet their primary requirements.

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