Hamajima (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme in the Temporary Residence Transition stream. The applicant sought review of a decision not to grant the visa. The Tribunal, constituted by Jade Murphy, was required to determine whether the applicant met the relevant criteria for the visa.

The central legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of the Migration Regulations 1994, which pertains to the nomination of a position for the Temporary Residence Transition stream. This clause requires, among other things, that the position to which the application relates is the subject of an approved nomination that has not been subsequently withdrawn. The Tribunal also considered whether the applicant had been identified in the nomination as the relevant Subclass 457 visa holder and whether the position remained available to the applicant.

The Tribunal reasoned that a key criterion for the grant of the visa in the Temporary Residence Transition stream is that the relevant nomination has not been withdrawn. The evidence before the Tribunal, including the primary decision and the applicant's own oral evidence, indicated that the position nomination had been withdrawn and was no longer available to the applicant. No evidence was presented to demonstrate that the applicant was the subject of an approved nomination. Consequently, the Tribunal found that clause 186.223 was not met.

As the applicant had only sought to satisfy the criteria for the Subclass 186 visa in the Temporary Residence Transition stream and had failed to meet the essential requirements for that stream, the Tribunal affirmed the decision not to grant the visa.