De Zoysa Wickramaratne (Migration)

This matter concerned the review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicants were the prospective employee and their family members. The core of the dispute revolved around the employer's nomination application and whether it had been approved.

The Tribunal was required to determine whether the applicants had satisfied the criteria for a Subclass 186 visa, specifically clause 186.223 of the Migration Regulations 1994, which mandates an approved nomination for the Temporary Residence Transition stream. This included assessing whether the nomination had been approved, not withdrawn, and if the position remained available to the applicant within the prescribed timeframe. The Tribunal also considered whether the secondary applicants, as family members, met the criteria under clause 186.311, which depended on the primary applicant being granted the visa.

The Tribunal reasoned that the employer's nomination application had been refused by the delegate, and this decision was affirmed by the Tribunal on 8 November 2019. Consequently, at the time of the current decision, there was no approved nomination as required by clause 186.223(2). The Tribunal noted that no substantive response was provided to a request for additional information and submissions under section 359A of the Migration Act 1958. As the primary applicant did not meet the essential criterion of an approved nomination, the secondary applicants also failed to meet their criteria under clause 186.311.

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