Ismail (Migration)

The applicant, Ismail, sought judicial review of a decision by the Administrative Appeals Tribunal (Cth) which affirmed the refusal of his Subclass 186 Employer Nomination (Permanent) (Class EN) visa application under the Direct Entry stream. The refusal was based on the applicant's failure to provide requested information, leading to the conclusion that the nomination was not approved.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal erred in law by affirming the delegate's decision that the applicant's nomination was not approved, thereby rendering the visa application invalid. This involved determining the proper interpretation and application of the relevant provisions of the *Migration Regulations 1994* (Cth) concerning the requirement for an approved nomination for a Subclass 186 visa.

Justice Dougall reasoned that the legislative framework for the Subclass 186 visa, specifically Regulation 5.19(1)(c), mandates that a nomination must be approved before a visa application can be validly made or considered. The delegate's request for further information was a step in the nomination assessment process, and the applicant's failure to comply meant the nomination could not be approved. Consequently, the Tribunal correctly found that the visa application was invalid from its inception due to the lack of an approved nomination. The court therefore dismissed the application for review.