Ghale (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically under the Temporary Residence Transition stream. The applicant sought review of a decision to refuse their visa application. The Tribunal, presided over by Mr S Norman, was tasked with determining whether the applicant met the requirements of clause 186.223 of the relevant migration regulations.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria outlined in clause 186.223(2), which pertains to the approval of a nominated position. This clause requires that the nomination be approved and not subsequently withdrawn, that there be no adverse information known to the Department about the nominator or associated persons, that the position remains available to the applicant, and that the visa application is made within six months of the nomination's approval. The Tribunal also considered whether the applicant might meet the criteria under other streams of the Subclass 186 visa, namely the Direct Entry and Agreement streams, in light of the nomination refusal.

The Tribunal reasoned that the nomination application lodged by A AND A (SYDNEY) PTY LTD was refused on 1 November 2016. Consequently, the requirement under clause 186.223(2) that the nomination be approved could not be met. The Tribunal further noted that the applicant had only sought to satisfy the criteria for the Temporary Residence Transition stream and had not made claims under the Direct Entry or Agreement streams. As the nomination was refused, the applicant did not meet the essential requirements for the Temporary Residence Transition stream, nor could they satisfy the criteria for the other streams as the relevant nomination and approval requirements were not met.

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