DESHAM (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), by an Indian national. The applicant sought review of a decision by the Department of Immigration and Border Protection to refuse to grant the visa, which was affirmed by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the nomination of a position. This clause requires, among other things, that the nomination has been approved by the Minister, has not been withdrawn, that there is no adverse information known to the Department about the nominator or associated persons (or such information can be disregarded), that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the applicant had not met the essential criterion of having an approved nomination. The applicant stated that his nominator, Python Technology, had informed him that the nomination had been refused but provided no reasons and indicated that the matter was for the applicant to pursue through review. The applicant presented evidence of his employment and qualifications but could not demonstrate that the nomination itself had been approved. Consequently, as the fundamental requirement of an approved nomination was not satisfied, the Tribunal concluded that the applicant's visa application could not succeed.

The Tribunal affirmed the decision under review, meaning the applicant was not granted the Subclass 186 visa.