Bolivar (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, to the Administrative Appeals Tribunal. The applicant sought review of a decision to refuse her visa application.

The primary legal issue before the Tribunal was whether the applicant had met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination that identifies the visa applicant, and that the nominator must be the intended employer, the nomination must have been approved and not withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be disregarded), the position must remain available, and the visa application must be made within six months of the nomination's approval.

The Tribunal affirmed the delegate's decision, finding that the applicant had failed to meet clause 186.223. The applicant herself acknowledged that there was no current nomination and that the nomination application lodged by Murray College of Health Pty Ltd had been refused. Furthermore, the applicant was no longer employed by the nominator as the company had closed. The Tribunal noted the absence of evidence demonstrating an approved nomination under regulation 5.19, as required by clause 186.233. The Tribunal also refused a request to refer the matter to the Minister for intervention under section 351 of the Migration Act 1958, noting the applicant's arguments regarding the delay in processing and her contributions to the Australian economy, but ultimately finding these insufficient to warrant intervention given the failure to meet the primary visa criteria.