JYOTI (Migration)

This matter concerned an appeal by Mrs Jyoti and other applicants against the refusal of Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The primary applicant, Mrs Jyoti, sought to rely on a nomination made by a company for the position of Café or Restaurant Manager. However, the company that made the nomination had been deregistered. The Tribunal, presided over by Katie Malyon, considered the claims and evidence presented.

The central legal issue before the Tribunal was whether Mrs Jyoti met the requirements of cl.186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination in the Temporary Residence Transition stream, identifying the visa applicant. Crucially, the nomination must have been approved and not subsequently withdrawn, and the position must still be available to the applicant. The Tribunal also noted the requirement that the visa application be made within six months of the nomination's approval.

The Tribunal reasoned that the company's nomination application had been refused by the Department, and the Tribunal itself had previously determined it lacked jurisdiction to review that refusal. Consequently, the position to which Mrs Jyoti's visa application related could not satisfy the criteria in cl.186.223, as the nomination had not been approved. This failure to meet the primary criteria meant that Mrs Jyoti did not qualify for the visa. As the other applicants' eligibility was contingent on Mrs Jyoti meeting the primary criteria as a member of her family unit, their applications also failed.

Accordingly, the Tribunal affirmed the Department's decision to refuse the Employer Nomination (Permanent) (Class EN) visas for all applicants.