Bowe (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 their visa application. The core of the dispute revolved around the nomination of a position by an employer, which had been refused by the Department.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.223(2) of the Migration Regulations 1994. This clause necessitates that the nominated position be the subject of an approved nomination application that has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval. A key legal issue was the effect of the nominator being deregistered after the nomination refusal, which prevented a review of that refusal.

The Tribunal reasoned that the original nomination application had been refused by the Department on 15 March 2018. Subsequently, a review of this refusal was found to be outside the Tribunal's jurisdiction because the nominator had been deregistered on 7 July 2019, meaning there was no longer a valid application for review. Given that there was no approved nomination and no prospect of changing the nomination refusal decision, the Tribunal concluded that the applicant could not satisfy the requirements of clause 186.223(2). The Tribunal also affirmed the decision not to grant a visa to the secondary applicant, as she did not meet the criteria for being a member of the family unit of a Subclass 186 visa holder and had not met the primary criteria in her own right.

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