Jayawickrama (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the direct entry stream. The applicant sought to work as a chef in Australia. The core of the dispute revolved around the nomination of the position by Urban Projuice Pty Ltd, which was subsequently refused and that refusal was affirmed on review. The decision reviewed by the Tribunal was the refusal to grant the applicant's visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, specifically concerning the approval of the nominated position. This clause requires, among other things, that the Minister has approved the nomination and that the nomination has not been subsequently withdrawn. The Tribunal also considered whether the applicant had demonstrated that the nominated position remained available and that the visa application was made within the prescribed timeframe after the nomination's approval.

The Tribunal reasoned that a fundamental requirement for a Subclass 186 visa under the direct entry stream is an approved nomination for the position. In this case, the nomination made by Urban Projuice Pty Ltd was refused by the delegate of the Minister, and this refusal was affirmed by the Tribunal on 12 September 2022. Consequently, there was no approved nomination in place that concerned the applicant. The Tribunal found that the applicant could not satisfy clause 186.233(3) because the nomination had not been approved.

As the applicant had only sought to satisfy the criteria for the Subclass 186 visa in the direct entry stream and had failed to meet the essential requirement of an approved nomination, the Tribunal affirmed the decision under review. The Tribunal ordered that the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas be affirmed.