Bandara (Migration)

This matter concerned an appeal by a visa applicant against the refusal of an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) temporary residence transition stream. The core of the dispute revolved around whether the applicant met the criteria for an approved nomination by her employer, Sisara Herath, which was a prerequisite for the visa grant. The Administrative Appeals Tribunal was tasked with reviewing the decision to refuse the nomination and, consequently, the visa application.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the position nominated is approved and that the visa applicant has been employed in the nominated occupation for at least two years prior to the lodgement of the visa application. The Department had refused the nomination on the basis that the applicant had not demonstrated the requisite two years of employment.

The Tribunal reasoned that the applicant's visa application was made on the evening of the last day of the two-year period required for employment. While the nominator, Sisara Herath, had sought review of the Department's refusal of the nomination, the Tribunal affirmed that decision. Consequently, as the nomination was not approved, the applicant could not satisfy the essential criterion under cl.186.223 for the grant of a Subclass 186 visa. The Tribunal therefore affirmed the decision under review.