BERGAMO (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The dispute centred on whether the applicant met the requirements for this visa subclass, particularly concerning the nomination of a position.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria set out in clause 186.223 of the Migration Regulations. This clause mandates, among other things, that the position to which the visa application relates must have been the subject of an approved nomination in the Temporary Residence Transition stream, identifying the visa applicant, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal reasoned that a crucial requirement of clause 186.223 was the approval of the nominated position. The evidence established that the nominator's application for approval of the nominated position for the applicant was refused on 24 July 2018, and this refusal was subsequently affirmed by the Tribunal on 23 March 2021. As the nomination had not been approved, the Tribunal concluded that the applicant could not satisfy this essential criterion for the Subclass 186 visa. Consequently, the Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas, noting that the secondary applicants' applications were dependent on the primary applicant meeting the criteria.