Cowan (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, made by Gary Cowan. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the visa, specifically clause 186.223, which pertains to the nomination of a position. The core of the dispute revolved around the fact that the applicant's nomination by Homedics Australia Pty Ltd had been refused by the Department and this refusal was subsequently affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant could satisfy clause 186.223 of the Migration Regulations 1994, which requires an approved nomination for the position. The Tribunal also considered the applicant's intention to seek Ministerial intervention under section 351 of the Migration Act 1958 if the review application was unsuccessful. The Tribunal had to decide whether to affirm the delegate's decision to refuse the visa, given the absence of an approved nomination, and whether the circumstances warranted a referral for Ministerial intervention.

The Tribunal reasoned that clause 186.223(2) was not met because the nomination had been refused by the Department and this decision was affirmed by the Tribunal on 15 February 2024. Although Homedics Australia Pty Ltd had lodged an application for judicial review of the Tribunal's decision, the outcome and timeframe were unknown. The Tribunal considered it reasonable not to defer its decision further. Consequently, as the essential criterion of an approved nomination was not satisfied, the Tribunal affirmed the decision not to grant the visa. However, the Tribunal was satisfied that the character references provided, which detailed the applicant's positive attributes, community involvement, and embodiment of Australian values, constituted unique and exceptional circumstances warranting consideration by the Minister under section 351 of the Act, and therefore referred the case to the Minister for this purpose.