Amarjeet Kaur (Migration)

This matter concerned an appeal by Amarjeet Kaur against the decision to refuse her Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The core of the dispute revolved around the requirement for an approved nomination for the position in which the applicant sought to be employed. The Administrative Appeals Tribunal (the Tribunal) was tasked with reviewing the delegate's decision to refuse the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the position nominated by the applicant's employer, Satzas Pty Ltd, was the subject of an approved nomination at the time of the visa decision. This involved considering whether the nomination itself had been approved and had not been subsequently withdrawn, and whether the applicant's visa application was made within the prescribed timeframe after the nomination's approval.

The Tribunal's reasoning focused on the mandatory nature of clause 186.223. It noted that the applicant's employer's nomination application had been refused by a delegate of the Minister on 25 July 2019. Although the employer sought review of this refusal, the Tribunal, in a prior proceeding, affirmed the Department's decision to refuse the nomination on 5 October 2021. Consequently, there was no approved nomination for the position as required by the regulations. The Tribunal acknowledged the applicant's personal circumstances, including her long residence in Australia and the potential hardship to her family if she were forced to leave. However, it concluded that clause 186.223 contained no discretionary factors, such as compassionate or compelling circumstances, that would allow it to waive the requirement for an approved nomination.

Accordingly, the Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.