Bhetwal (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant sought review of a decision to refuse this visa. The Tribunal was required to determine whether the applicant was the subject of an approved nomination for the position in question.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the Subclass 186 visa, specifically clause 186.223, which requires that the position be the subject of an approved nomination that has not been withdrawn, among other conditions. The Tribunal also considered whether it was reasonable to disregard any adverse information known to Immigration concerning the nominator or associated persons, and whether the position remained available to the applicant.

The Tribunal's reasoning focused on the applicant's failure to provide necessary information and attend scheduled communications and hearings. Despite multiple attempts by the Tribunal to contact the applicant and his nominated representative, including letters informing them of the representative's cancelled registration and invitations to provide information and attend a hearing, no response was received. The Tribunal noted that correspondence was returned to sender, and the applicant did not attend the hearing. Crucially, the Tribunal was informed that the nomination application by the sponsoring employer had not been approved by the Department, and a subsequent review application by the employer was withdrawn. As clause 186.223 requires an approved nomination that has not been withdrawn, and this fundamental criterion was not met, the Tribunal concluded it could not make a favourable decision.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, as the requirements for the Temporary Residence Transition stream had not been met.