Gurwinderjeet Kaur (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant sought review of a decision to refuse her visa application, and also sought to have her husband included as a secondary applicant. The Administrative Appeals Tribunal was tasked with determining whether the applicant met the relevant criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 186.223 of the Migration Regulations 1994, which requires an approved nomination for the position. The applicant conceded that there was no approved nomination in place at the time of the hearing. The Tribunal also considered whether the second applicant met the criteria to be a member of the family unit of the primary applicant.

The Tribunal reasoned that clause 186.223(1) requires the position to be the subject of an approved nomination that identifies the visa applicant. As the applicant conceded that no such nomination existed, this criterion was not met. The Tribunal further explained that it had no discretion to consider the circumstances that led to the refusal of a nomination or to link the current application to any future nomination. Consequently, the Tribunal affirmed the decision to refuse the primary applicant's visa. The Tribunal also affirmed the refusal of the visa for the second applicant, as he did not meet the secondary criteria as a family member and had not demonstrated he could meet the primary criteria independently.