Grewal (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the temporary residence transition stream. The dispute arose because the nominating employer had provided an incorrect Transaction Reference Number (TRN) with the visa application, which was linked to a nomination for a different individual. The primary decision maker had refused the visa on this basis.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations, specifically whether the nominated position remained available to the applicant. This clause requires that the position nominated for approval must be the same position for which the applicant was identified as a Subclass 457 visa holder, that the nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator, and crucially, that the position is still available to the applicant.

The Tribunal accepted the applicant's evidence that the incorrect TRN was an honest mistake by her nominating employer, who had inadvertently mixed up TRNs for two nominees. The Tribunal also accepted the applicant's evidence of continuous full-time employment in the nominated position of Baker as a Subclass 457 visa holder since 2017. However, the Tribunal noted that the applicant's nominating employer and the nominated position no longer existed in their original form due to a business purchase by a new company entity. Despite acknowledging the applicant's continued employment with the new entity, the Tribunal found that the specific requirements of clause 186.223(4), that the position is still available to the applicant, had not been met in relation to the original nomination.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, as the criteria for the temporary residence transition stream had not been satisfied.