Bhasin (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The dispute arose because the applicant's employer, Manjits Indian Restaurant (Mitali) Pty Ltd, had not sought review of the Department's decision to refuse its nomination of the applicant. Consequently, there was no approved nomination in place for the applicant.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Subclass 186 visa, specifically clause 186.223, which requires an approved nomination by the employer. The Tribunal also had to determine if it possessed any discretion to waive this requirement, given the absence of an approved nomination.

The Tribunal reasoned that clause 186.223 of the Migration Regulations 1994 sets out mandatory requirements for an approved nomination, including that the nomination must have been approved and not subsequently withdrawn. The Tribunal noted that it had informed the applicant that the absence of an approved nomination was relevant to the review and would likely lead to the affirmation of the delegate's decision. At the hearing, the Tribunal reiterated that it had no discretion to waive the requirements of clause 186.223, as these criteria contained no discretionary factors. As the applicant had not satisfied this essential criterion, the Tribunal concluded that the decision under review must be affirmed.

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