Bhullar (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant's employer, Saamastam Enterprises Pty Ltd, had its nomination for the applicant's position refused on 12 February 2019. The applicant did not dispute this refusal and did not provide evidence that her employer sought review of the decision or lodged a new nomination. The applicant's 10-year-old son had acquired Australian citizenship, and the applicant sought ministerial intervention. The Administrative Appeals Tribunal considered whether to affirm the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant could satisfy the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the nomination of the position. This clause requires that the position to which the visa application relates must be the subject of an approved nomination that has not been withdrawn, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered whether the circumstances warranted a referral to the Minister for consideration under section 351 of the Migration Act 1958, given the applicant's son's Australian citizenship.

The Tribunal reasoned that a fundamental requirement for the Temporary Residence Transition stream is that the position for which the visa is sought must be the same position that was the subject of an approved nomination in relation to which the applicant made a declaration in their visa application. As the employer's nomination had been refused and no review was sought, this criterion could not be met. The Tribunal noted that current authority and departmental policy indicate that a subsequent nomination, even for the same position by the same employer, would not satisfy the requirement, as it would not be the nomination in relation to which the original declaration was made. Regarding ministerial intervention, the Tribunal found insufficient evidence to be satisfied that a referral was appropriate, although it noted that the applicant could make such a request directly to the Minister.

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