ELNAS (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal concerning the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition scheme. The primary applicant sought the grant of the visa, and a secondary applicant was included in the application as a family member.

The central legal issue before the Tribunal was whether the position identified in the visa application was the subject of an approved nomination or a pending nomination review, as required by clause 186.223 of the Migration Regulations. Additionally, the Tribunal had to determine if the secondary applicant met the criteria for the visa, specifically whether they were a member of the family unit of a person who satisfied the primary criteria for the grant of a Subclass 186 visa.

The Tribunal reasoned that clause 186.223 requires an approved nomination for the position. In this case, the nomination application made by KS Medical Group Pty Ltd was refused on 9 April 2018, and no review application was lodged. Despite a request for information from the Tribunal on 6 December 2018, the applicant provided no evidence of an approved nomination or a pending review. The applicant also failed to attend a hearing to provide oral evidence. Consequently, the Tribunal found that the primary applicant did not meet the criteria for the visa. Furthermore, as the primary applicant did not meet the criteria, the secondary applicant, who had made a combined application, could not satisfy the requirement of being a member of the family unit of a person who holds a Subclass 186 visa, thus failing to meet clause 186.311.

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