Jethara (Migration)

This matter concerned an application for review by an Indian citizen, the primary applicant, and his spouse, the secondary applicant, for Employer Nomination (Permanent) (Class EN) visas, Subclass 186, Temporary Residence Transition stream. The delegate had refused to grant the visas because the primary applicant did not meet criterion 186.223(2) of Schedule 2 to the Regulations, as the nomination for his position had been withdrawn and consequently not approved by the Minister. The primary applicant had been working as a Restaurant Manager in Sydney since 2014. The nominator withdrew the application on 17 May 2018, and the Department subsequently refused the visa application on 19 June 2018. The Administrative Appeals Tribunal (AAT) invited the applicant to provide information and attend a hearing, but the applicant and his employer did not attend, citing the employer's emergency travel to Pakistan.

The legal issue before the Tribunal was whether the primary applicant was the subject of an approved nomination that had not been subsequently withdrawn, as required by clause 186.223 of the Regulations. This clause stipulated that the nomination must have been approved by the Minister, not subsequently withdrawn, and that the position must still be available to the applicant. The Tribunal was also required to consider whether the applicant had met the criteria for the visa at the time of the decision.

The Tribunal reasoned that the primary applicant had not satisfied the requirements of clause 186.223 because the nomination had been withdrawn by the nominator and was not the subject of a review. Despite being given opportunities to provide further information and attend a hearing, the applicant failed to do so, and no new or approved nomination was presented. The Tribunal found that it had no discretion to remit the matter for further consideration as there was no outstanding or approved nomination. Consequently, the Tribunal concluded that the primary applicant did not meet the criteria for the visa.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants. As the primary applicant failed to meet a criterion that must be satisfied at the time of the decision, the secondary applicant also did not meet the criteria for the grant of the visa.