Bains (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the Temporary Residence Transition stream. The applicants sought review of a decision not to grant them this visa. The primary applicant was the subject of an approved nomination, and the other applicants were seeking the visa as members of his family unit.

The Tribunal was required to determine whether the primary applicant met the criteria for the visa, particularly clause 186.223, which governs the nomination requirements. This included whether the position was the subject of an approved nomination that had not been withdrawn, whether there was any adverse information concerning the nominator, if the position remained available, and if the visa application was lodged within six months of the nomination's approval. The Tribunal also needed to consider if the secondary applicants met the criteria as family members of a primary applicant who had satisfied the visa requirements.

The Tribunal reasoned that clause 186.223(2) requires the Minister to have approved the nomination, and clause 186.223(3) mandates that the nomination has not been subsequently withdrawn. The evidence presented indicated that the nomination had been withdrawn by the employer, Galati Nominees Pty Ltd, on 12 July 2019. Furthermore, the primary applicant stated he was not currently the subject of an approved nomination and had not worked for the nominating company since September 2018. Based on this evidence, the Tribunal concluded that clause 186.223 was not satisfied.

Consequently, as the primary applicant had not met the essential criteria for the Subclass 186 visa in the Temporary Residence Transition stream, the secondary applicants could not satisfy the requirements as members of his family unit. The Tribunal affirmed the decision not to grant the visa.