Azeem (Migration)

This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) concerning the refusal of Subclass 186 Employer Nomination Scheme visas. The applicant sought to have the decision to refuse the visas set aside.

The primary legal issue before the Tribunal was whether the applicant met the mandatory criteria for the grant of the visa, specifically whether there was an approved nomination for the position. The Tribunal was required to determine if the applicant had an approved nomination or if a nomination refusal was pending review, as this was the determinative issue for the visa refusal.

The Tribunal reasoned that Clause 186.223(2) of Schedule 2 to the Regulations, which requires an approved nomination, is a mandatory criterion that cannot be waived. The evidence showed that the nomination by the sponsor, Z Mahmood & N Zafar (trading as Metro Sports Australia), had been refused, and although a review was sought, that review application was withdrawn. Consequently, the nomination refusal was no longer pending review, and the applicant did not have an approved nomination. The Tribunal also noted that the applicant's claims regarding unpaid wages and complaints to Fair Work and the Department were not relevant to the determinative issue of whether the nomination was approved.

As the applicant did not satisfy the primary criteria for the grant of the Subclass 186 visa, the Tribunal affirmed the decision not to grant the visas to the applicant and the secondary applicants, who were family members.