Jhanji (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Jhanji, who sought an Employer Nomination (Permanent) (Class EN) visa, Subclass 186. The applicant's employer, Karishna Enterprises Pty Ltd, had its nomination application refused by the Department, a decision subsequently affirmed by the Tribunal. Despite the applicant's concession that the nomination had not been approved and their request for the Tribunal to consider their circumstances, the Tribunal was bound by the legislative requirements.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 186 visa, specifically clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires that for applicants in the Temporary Residence Transition stream, the position must be the subject of an approved nomination that has not been withdrawn, and certain other conditions must be met, including the position remaining available to the applicant.

The Tribunal reasoned that it had no discretion to waive the requirement for an approved nomination. While acknowledging the applicant's difficult circumstances, the Tribunal found that the failure to secure an approved nomination meant the applicant did not meet the essential criteria for the visa. The Tribunal also noted that the applicant's representative had initially requested consideration for Ministerial Intervention but later withdrew this request to pursue the matter in the Federal Circuit Court.

Consequently, the Tribunal affirmed the decision not to grant the Subclass 186 visas to the applicant and their spouse and children, as they did not meet the primary or secondary visa criteria.