Islam (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 not to grant the visa. The Tribunal, constituted by Member Amanda Mendes Da Costa, was required to determine whether the applicant met the criteria for this visa subclass.

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. Specifically, the Tribunal had to ascertain if the nominated position had been approved, had not been withdrawn, and if other conditions related to the nomination and the timing of the visa application were met. The applicant had only sought to satisfy the criteria for the Temporary Residence Transition stream, and no claims were made in respect of other visa streams.

The Tribunal's reasoning focused on the requirement for an approved nomination. The evidence before the Tribunal established that the nominator's application for approval of the nominated position for the applicant was refused on 8 May 2019, and this refusal was affirmed by the Tribunal on 30 April 2021. Consequently, the nominator's application for the nominated position had not been approved. As this fundamental requirement of clause 186.223 was not met, and there was no evidence of any other approved nomination, the Tribunal concluded that the applicant did not satisfy the criteria for the visa.

Accordingly, the Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.