Jyotika (Migration)

The Administrative Appeals Tribunal, with Member Nicola Findson presiding, considered an appeal by Jyotika and three other applicants concerning a decision not to grant them Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The core of the dispute revolved around whether the nominated position of Cook met the relevant legislative criteria for the visa subclass.

The primary legal issue before the Tribunal was whether the applicants satisfied clause 186.223 of the Migration Regulations 1994, which sets out the requirements for a nominated position in the Temporary Residence Transition stream. This clause mandates, among other things, that the nomination must have been approved, not subsequently withdrawn, and that the visa application must have been made within six months of the nomination's approval. The Tribunal was also required to consider the implications for the secondary applicants if the primary applicant failed to meet the criteria.

The Tribunal reasoned that the nomination made by the applicant's proposed employer, Radhamadhav Pty Ltd, had not been approved. This conclusion was based on the fact that the Tribunal itself had affirmed a prior decision of the Department to refuse that nomination on 21 October 2021. Consequently, the Tribunal found that clause 186.223 was not met. As the primary applicant failed to satisfy the essential criteria for the visa, the Tribunal determined that the secondary applicants also failed to meet the secondary criteria under clause 187.311.

Accordingly, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to any of the applicants.