Behgal (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, in the Temporary Residence Transition stream. The applicant sought review of a decision by the Department of Immigration. The Tribunal, constituted by Susan Trotter, was required to determine whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223(2) of the Migration Regulations 1994, which requires that the nominated position be the subject of an approved nomination application. The Tribunal also considered whether the secondary applicants met the criteria for the visa as family members.

The Tribunal reasoned that the nomination application lodged by Yellow Brick Road Robina PL ATF VR Trust on behalf of the applicant had been refused by the Department on 21 September 2017, and a subsequent application to review that refusal was found by the Tribunal not to be within its jurisdiction. Consequently, at the time of the Tribunal's decision, the nomination had not been approved. As clause 186.223(2) mandates that the Minister has approved the nomination, the applicant failed to meet this essential requirement for the visa. The Tribunal further found that the second and third applicants did not meet the secondary visa criteria as they were not members of the family unit of a Subclass 186 visa holder, nor had they demonstrated they met the primary criteria in their own right.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.