BRAR (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 to grant the visa. The Tribunal was required to determine whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination as required by 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 application in the Temporary Residence Transition stream, identifying the visa applicant. Further requirements include that the nomination has not been withdrawn, there is no adverse information known to Immigration about the nominator or associated persons (or such information is reasonable to disregard), the position remains available, and the visa application was made within six months of the nomination's approval.

The Tribunal found that the company's nomination application had been refused by the Department, and a subsequent review application lodged with the Tribunal had been withdrawn. As the nomination application had not been approved, the Tribunal concluded that the applicant did not meet the criteria in clause 186.223(2) of Schedule 2 to the Regulations. Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 186 visa. Pursuant to clause 186.311, the Tribunal also affirmed the refusal of visas for the applicant's spouse and child, as they did not meet the secondary criteria for family members and had not demonstrated they met the primary criteria in their own right.