Islam (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding the refusal of Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant, Mr. Md Aminul Islam, sought to have the decision to refuse his visa application reviewed, with his spouse, Mrs. Sharmin Akther, included as a secondary applicant.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to the nomination of a position for the Subclass 186 visa. This clause requires, among other things, that the nomination for the position has been approved by the Minister and has not been subsequently withdrawn, and that the visa application is made within six months of the nomination's approval.

The Tribunal found that the nomination application associated with the position was not approved, and therefore the applicant failed to satisfy clause 186.223(2). The Tribunal noted that while the applicant made allegations against his former sponsoring employer, it was bound to conduct a merits review based on the information before it and in accordance with applicable law, without discretion to waive essential criteria. As the applicant did not meet this essential criterion, and the secondary applicant's eligibility was contingent on the primary applicant's success, the Tribunal affirmed the decision not to grant the visas.