Henaway (Migration)

The Administrative Appeals Tribunal considered the case of Ms Henaway, who sought review of a decision not to grant her a Subclass 186 Employer Nomination (Permanent) (Class EN) visa under the Temporary Residence Transition stream. The dispute centred on whether the applicant had satisfied the requirement for an approved nomination for the position of Primary School Teacher at Melton West Primary School.

The primary legal issue before the Tribunal was whether the applicant had met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, specifically concerning the necessity of an approved nomination for a position. This clause requires that for the Temporary Residence Transition stream, the nominated position must have been the subject of an application for approval, that the nomination must have been approved and not withdrawn, and that the visa application must have been made within six months of the nomination's approval.

The Tribunal reasoned that despite the applicant providing evidence of her employer's ongoing intention to employ her as a physical education teacher, and acknowledging that her employer had lodged a nomination application, this nomination had been refused by the Department. The applicant also confirmed her understanding that without an approved nomination, she could not satisfy clause 186.223. The Tribunal relied on the principles articulated in *Singh v MIBP* [2017] FCAFC 105, which emphasised that the requirement for an approved nomination is a factual event and a critical component of the visa scheme, intended to be a "once off" process.

Consequently, as the applicant had failed to demonstrate an approved nomination, the Tribunal found that she had not met the essential criteria for the Subclass 186 visa in the Temporary Residence Transition stream. The Tribunal affirmed the decision not to grant the visa.