Guglielmi (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa. The primary dispute concerned the applicant's failure to meet the requirements of subclause 186.233(3) of the Migration Regulations 1994, which relates to the approval of a nomination. The applicant acknowledged not meeting these criteria at the time of the Tribunal's decision, as her nomination had not been approved and her former employer had withdrawn its review application.

The legal issue before the Tribunal was whether to affirm the delegate's decision not to approve the nomination, or to refer the applicant's matter to the Minister. The applicant sought referral based on compassionate circumstances, arguing that her resignation from her sponsoring employer was due to illegal activities and subsequent workplace harassment. She provided evidence of commencing employment in 2016, initially under a 457 visa program, and then transitioning to an ENS nomination. Her evidence detailed a dispute arising from a new manager's suggestion to pocket undeclared cash sales, which she refused to participate in, leading to bullying and harassment, a pay cut, and ultimately her resignation. She had reported these issues to the Australian Taxation Office and SafeWork NSW.

The Tribunal reasoned that the applicant had only sought to satisfy the criteria for the Subclass 186 visa under the Direct Entry stream. As the applicant did not meet the mandatory requirements for this visa stream, specifically the approved nomination, the Tribunal was bound to affirm the delegate's decision. The Tribunal concluded that there was no basis to refer the matter to the Minister, as the applicant had failed to meet the prescribed visa criteria. Consequently, the Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.