Hoque (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, made by Mr Hoque, Ms Sultana, and Miss Hoq. The Administrative Appeals Tribunal, constituted by Member Katie Malyon, was required to determine whether the primary applicant, Mr Hoque, met the criteria for the visa, and consequently, whether the secondary applicants, as members of his family unit, also met the criteria.

The central legal issue before the Tribunal was whether Mr Hoque was the subject of an approved nomination as required by cl.186.223(2) of Schedule 2 to the Migration Regulations 1994. This regulation mandates that the nomination must have been approved and not subsequently withdrawn, among other conditions, for an applicant to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream.

The Tribunal reasoned that the Company's nomination application for the position of Cook had been refused by the Department, and no review of that refusal was sought. Consequently, the nomination had not been approved. As an approved nomination is a mandatory requirement under cl.186.223(2), and this requirement was not met, Mr Hoque did not satisfy the criteria for the visa. Since Mr Hoque failed to meet the primary criteria, his family members, Ms Sultana and Miss Hoq, also did not meet the criteria for the grant of the visa. Accordingly, the Tribunal affirmed the Department's decision to refuse all three applications.