DHALIWAL (Migration)

This matter concerned an application for review of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the temporary residence transition stream. The primary applicant sought review of the refusal of the nomination associated with his visa application, with the second applicant applying as a member of his family unit. The review was heard by Penelope Hunter of the Tribunal.

The central legal issue before the Tribunal was whether the nomination for the Subclass 186 visa had been approved. This required consideration of clause 186.223 of the Migration Regulations 1994, which stipulates that the nomination must have been approved, not subsequently withdrawn, and that the position must still be available to the applicant. The Tribunal also had to consider whether there was any adverse information known to the Department about the nominator or associated persons, or if such information could be disregarded.

The Tribunal reasoned that the nomination had been refused by the Department on 22 September 2017, and this decision remained unchanged as the employer had withdrawn their application for review of that refusal on 22 April 2020. While the Tribunal accepted that the applicant and the second applicant faced challenges due to the COVID-19 pandemic, including the employer's business difficulties and offshore status, these circumstances did not grant the Tribunal discretion to override the regulatory requirements. The Tribunal noted that the disruption caused by the pandemic was not a reason for indefinite adjournment, which would be inconsistent with the Tribunal's objective of providing a swift review mechanism.

Consequently, as the primary applicant did not meet the essential requirement of an approved nomination, and there was no evidence that the second applicant met this requirement independently, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to either applicant.