Birl (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant was the nominee for the position of Café or Restaurant Manager, employed by Sheetal Indian Restaurant Pty Ltd. The primary dispute revolved around whether the applicant met the criteria for an approved nomination.

The central legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of the Migration Regulations, which governs the requirements for an approved nomination in the Temporary Residence Transition stream. This clause mandates, among other things, that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, that the nomination has been approved and not withdrawn, and that the visa application is made within six months of the nomination's approval.

The Tribunal reasoned that the applicant's employer, Sheetal Indian Restaurant Pty Ltd, had its nomination application refused by both the Minister's delegate and subsequently by the Tribunal. As the nomination itself had not been approved, the applicant could not satisfy the requirements of clause 186.223. Consequently, the Tribunal affirmed the decision not to grant the visa to the applicant and, by extension, to her family members who applied as secondary applicants, as they did not meet the primary criteria for the visa.