Ekanayake (Migration)

The Administrative Appeals Tribunal considered a decision concerning an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) in its Temporary Residence Transition stream. The primary applicant, identified as a Chief Information Officer, had an approved nomination that was subsequently refused. The Tribunal also reviewed the applications of the second, third, and fourth named applicants, who were family members.

The central legal issue before the Tribunal was whether the primary applicant met the criteria for a Subclass 186 visa under the Temporary Residence Transition stream, specifically clause 186.223. This clause requires, among other things, that the nominated position has been approved and has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval. The Tribunal also had to determine if the secondary applicants met the criteria to be included as family members of a Subclass 186 visa holder, or if they qualified in their own right.

The Tribunal reasoned that the primary applicant failed to satisfy clause 186.223 because the nominated position had not been approved at the time of the Tribunal's decision. Consequently, the primary applicant did not meet the requirements for the visa. The Tribunal further found that the secondary applicants did not meet the criteria for inclusion as family members, nor had they provided evidence to satisfy the primary visa criteria in their own right.

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