Dhanapala Mudiyanselage Gedara (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Dhanapala Mudiyanselage Gedara concerning a Subclass 186 Employer Nomination Scheme visa, specifically the Temporary Residence Transition stream. The applicant sought review of a decision that affirmed the refusal of their visa application. The core of the dispute revolved around whether the nomination for the applicant's position as a Marketing (Business Development) Manager had been validly approved and met the relevant legislative criteria.

The Tribunal was required to determine whether the nomination for the applicant's position satisfied the requirements of clause 186.223 of the Migration Regulations 1994. This involved assessing whether the nominated position was the subject of an approved nomination that identified the visa applicant, and whether the nomination had not been withdrawn. Further, the Tribunal 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 also needed to ascertain if the position remained available to the applicant and if the visa application was lodged within six months of the nomination's approval.

The Tribunal's reasoning focused on the nominator's failure to provide updated and contemporaneous evidence to address the criteria for nomination approval. Despite being invited to do so and granted an extension, the nominator's representative submitted only the original documents from 2017. The Tribunal noted that the nominator and its director ultimately declined to attend a hearing and consented to a decision based on the available documents. Consequently, the Tribunal concluded that the nominator had not satisfied the requirements of clause 186.223, and therefore, the decision under review, which affirmed the refusal of the visa, should be affirmed. The Tribunal also affirmed the decision not to grant visas to the applicant's husband and children, as they did not meet the secondary criteria for family members or the primary criteria in their own right.