Ghans (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal (AAT) concerning the refusal to grant Employer Nomination (Permanent) (Class EN) visas, specifically Subclass 186 (Employer Nomination Scheme) in the Temporary Residence Transition stream. The applicant, Ms. Kaur, sought to have the decision to refuse her visa affirmed.

The primary legal issue before the Tribunal was whether there was an approved nomination for the position Ms. Kaur sought to be granted a visa for. This was a prerequisite for the grant of a Subclass 186 visa under regulation 186.223(2) of Schedule 2 to the Migration Regulations 1994. A secondary issue arose concerning the application of Ms. Kaur's partner, who sought a Subclass 186 visa as a member of her family unit, which depended on Ms. Kaur holding the visa.

The Tribunal noted that the delegate had refused the visas because Ms. Kaur's employer's restaurant business was not considered financially strong enough to support her continued employment. The AAT had previously affirmed the decision to refuse the nomination application linked to Ms. Kaur's visa application, and no further review was pending. The Tribunal accepted that the circumstances leading to the refusal of the nomination were beyond the applicants' control and acknowledged their distress. However, the Tribunal was bound by the requirement of an approved nomination, which had not been met. As Ms. Kaur did not hold a Subclass 186 visa, her partner's application also failed.

Consequently, the Tribunal affirmed the decision not to grant the applicants the Subclass 186 visas, as the essential criterion of an approved nomination had not been satisfied.