JAMILOV (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant sought to have a decision of the Tribunal reviewed, which had affirmed a refusal to grant the visa. The core of the dispute revolved around whether the applicant met the requirements of clause 186.223 of the Migration Regulations.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223, which outlines the criteria for a nominated position in the Temporary Residence Transition stream. This clause requires, among other things, that the position be the subject of an approved nomination that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal affirmed the decision under review because the nomination made by Atez Investments Pty Ltd in respect of the applicant had been refused by the Tribunal on 18 June 2021. As the nomination was refused, the applicant could not satisfy clause 186.223(2), which mandates that the Minister has approved the nomination. The Tribunal had notified the applicant of its intention to affirm the decision, providing an opportunity to comment on the relevance of the refused nomination to the visa criteria, but the applicant failed to respond within the prescribed period. Consequently, the Tribunal proceeded to make a decision without further comment.

The Tribunal concluded that the applicant had not met the essential requirements for the Subclass 186 visa in the Temporary Residence Transition stream, specifically the requirement for an approved nomination. Therefore, the Tribunal affirmed the decision not to grant the visa.