Denney (Migration)

The Administrative Appeals Tribunal reviewed decisions concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant, Mr. Elliott Vaughn Denney, was the nominee for a Fitness Centre Manager position, and his sponsoring employers, The Green Family Trust and The McKay Family Trust, had applied for approval of the nomination. The Department had refused to approve the nomination, and subsequently refused Mr. Denney's visa application on the grounds that the nomination was not approved. Both the nominator and Mr. Denney sought review of these decisions by the Tribunal.

The primary legal issue before the Tribunal was whether the nomination for the Fitness Centre Manager position had been approved, as required by clause 186.223 of Schedule 2 of the Migration Regulations. This clause mandates that for a Subclass 186 visa in the Temporary Residence Transition stream, the position must be the subject of an approved nomination that has not been withdrawn, and certain other conditions regarding adverse information and the timing of the visa application must be met. The Tribunal was also required to consider whether the applicant had provided sufficient evidence to satisfy this essential criterion, particularly in light of a section 359A notice issued by the Tribunal.

The Tribunal reasoned that an approved nomination is a fundamental requirement for the grant of a Subclass 186 visa under the Temporary Residence Transition stream, as stipulated by clause 186.223(2). Despite acknowledging the potential hardship to the applicant and nominator and noting the existence of a live nomination application with the Department, the Tribunal found that the nomination itself had not been approved. The Tribunal considered the statutory declarations provided by the applicant and nominator, which outlined hardship and stated there was a live nomination application, but concluded that this did not alter the legal requirement for an approved nomination to be linked to the visa application. The Tribunal also noted that the applicant had not satisfied other sub-clauses of 186.223, such as the nomination not being withdrawn and the visa application being made within six months of nomination approval.

Consequently, the Tribunal affirmed the Department's decisions to refuse the approval of the nomination and to refuse the grant of the Subclass 186 visa to Mr. Denney. The Tribunal concluded that as the applicant could not satisfy an essential criterion for the visa, namely an approved nomination, the decisions under review were to be affirmed.