Begum (Migration)

This matter concerned an application for review of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant sought to have the decision of the Department of Home Affairs, which refused the visa, set aside. The review was conducted by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of regulation 186.223 of Schedule 2 to the Migration Regulations 1994. This regulation outlines the criteria for a nominated position in the Temporary Residence Transition stream, including that the nomination must have been approved, not withdrawn, and that the nominated position must still be available to the applicant. A further requirement is that the visa application must be made within six months of the nomination's approval.

The Tribunal affirmed the decision to refuse the visa because the nominated employer, Swissplus Pty Ltd, had been deregistered by the Australian Securities and Investments Commission on 2 June 2019. This deregistration raised significant concerns about the availability of the nominated position, a key criterion under regulation 186.223(4). Furthermore, the deregistration cast doubt on whether the nomination itself could be considered approved and not withdrawn, as required by regulations 186.223(2) and (3). The Tribunal had notified the applicant of this adverse information and invited a response, but the applicant did not provide the requested comments or evidence by the stipulated deadline, nor did they respond to an invitation to attend a hearing.

Consequently, the Tribunal was not satisfied that the applicant met the essential requirements for the Subclass 186 visa in the Temporary Residence Transition stream. The Tribunal therefore affirmed the decision of the Department of Home Affairs not to grant the visa.