HABIB (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically within the Temporary Residence Transition stream. The applicant sought review of a decision to refuse the approval of a nomination made by Kassa Imports Pty Ltd in respect of the applicant. The Tribunal, presided over by Karen McNamara, was required to determine whether the applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of the Migration Regulations 1994. This clause, as applicable, required, among other things, that the nominated position be the subject of an approved nomination that identified the visa applicant, that the nomination had not been withdrawn, that there was no adverse information known to Immigration concerning the nominator or associated persons, that the position remained available, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that a prerequisite for meeting clause 186.223 was that the nomination must have been approved. The Tribunal had previously affirmed the decision to refuse the approval of the nomination made by Kassa Imports Pty Ltd. Consequently, as the nomination had been refused, the applicant could not satisfy subclause 186.223(2), and therefore, the overall criterion 186.223 was not met. The Tribunal provided the applicant with an opportunity to comment on this proposed reason for affirming the decision, which the applicant did not respond to by the stipulated deadline.

The Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa because the applicant failed to meet the requirements of clause 186.223, specifically due to the refusal of the underlying nomination.