Butt (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme). The primary applicant's employer, KP Sidhu Investments Pty Ltd, had lodged a nomination for the applicant. The Department initially refused this nomination, and this refusal was subsequently affirmed by the Tribunal. The visa application was then refused by the Department on the basis that the associated nomination had not been approved. The secondary applicants sought to be included in the visa application as family members of the primary applicant.

The central legal issue before the Tribunal was whether the nomination of the position for the primary applicant had been approved, as required by clause 186.223 of the Regulations. This clause mandates that for applicants in the Temporary Residence Transition stream, the nominated position must have been approved, and the applicant must have been identified in that nomination. The Tribunal also had to consider the implications of the primary applicant's failure to meet the primary visa requirements on the eligibility of the secondary applicants.

The Tribunal reasoned that the primary applicant's visa application was predicated on an associated nomination that had been refused by the Department and that refusal had been affirmed by the Tribunal. Despite the applicant's attempt to introduce a new nomination, the Department correctly informed them that a new nomination could not be linked to the existing visa application. The Tribunal further noted that it had provided the applicants with an opportunity to comment on the impending refusal of their review application, specifically highlighting the relevance of the affirmed nomination refusal to the visa criterion. As the primary applicant did not meet the essential requirements for the visa, and there was no evidence that the secondary applicants met these requirements independently, the Tribunal concluded that the decision to refuse the visa in respect of all applicants should be affirmed.