Chadha (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant sought this visa based on an employer nomination made by ADJ Financial Services Pty Ltd. The core of the dispute revolved around the validity and approval of this nomination in relation to the visa application.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations, specifically subclause (2) which mandates that the Minister has approved the nomination. The applicant contended that while the initial nomination was refused, a subsequent nomination had been lodged by his employer. The Tribunal was required to determine whether this subsequent nomination could satisfy the visa criterion, or if only the nomination made at the time of the visa application was relevant.

The Tribunal, presided over by R. Skaros, affirmed the decision to refuse the visa. The reasoning was based on established case law, which holds that only the nomination made at the time of the visa application can be relied upon to satisfy the requirements of clause 186.223. Despite acknowledging the applicant's difficulties arising from the alleged incompetence of a migration agent, the Tribunal found that the initial nomination lodged by ADJ Financial Services Pty Ltd had been refused and this refusal had not been set aside. Consequently, a later nomination could not be retrospectively applied to meet the criterion.

As the primary applicant did not meet the requirements for the grant of the visa, the Tribunal also affirmed the decision in respect of the secondary applicants, who had applied as members of the first applicant's family unit. The Tribunal therefore affirmed the decision not to grant the applicants the Employer Nomination (Permanent) (Class EN) visas.