Gill (Migration)

The Administrative Appeals Tribunal considered the case of Gill (Migration), involving an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The core dispute revolved around whether the applicant met the criteria for the visa, specifically clause 186.223, which requires an approved and unwithdrawn nomination for a position that remains available to the applicant.

The legal issues before the Tribunal were whether the applicant satisfied clause 186.223 of the Migration Regulations 1994, and consequently, whether the decision to refuse the visa should be affirmed. This involved determining if the nomination for the applicant's position as a Massage Therapist had been approved and had not been subsequently withdrawn, and if the applicant had been afforded procedural fairness in light of the withdrawal of the nomination.

The Tribunal reasoned that the applicant's employer's nomination application was initially refused. Subsequently, the employer withdrew their application to review this refusal. The Tribunal notified the applicant of this withdrawal and invited them to provide submissions, warning that failure to do so might lead to the decision being affirmed due to the unmet nomination requirement. As the applicant did not respond to this invitation within the prescribed period, the Tribunal concluded that the applicant was not entitled to appear before it, pursuant to sections 359A, 359C, and 360(3) of the Migration Act 1958. The Tribunal applied the principle that a nomination must be approved and not subsequently withdrawn to satisfy clause 186.223.

The Tribunal affirmed the decision not to grant the applicants' Employer Nomination (Permanent) (Class EN) visas. The Tribunal found that the second and third named applicants did not satisfy clause 186.311, as there was no evidence they met the primary criteria for the visa, and therefore the decision under review in respect of them was affirmed.