KALAKUNTLA (Migration)

The applicant sought review of a decision to refuse to grant him and his wife Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant's visa application was based on a nomination by All Seasons Aust Gourmet Produce NSW Pty Ltd for the position of 'Cook'. His wife applied as a member of his family unit.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for the Subclass 186 visa, particularly clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nominated position be the subject of an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator, that the position remains available, and that the visa application is made within six months of the nomination's approval.

The Tribunal noted that the nomination application lodged by All Seasons Aust Gourmet Produce NSW Pty Ltd for the applicant's position as a Cook was refused on 6 March 2019. The Tribunal had notified the applicant of this refusal and invited him to respond, as an unapproved nomination would likely lead to the visa criteria not being met. The applicant's response focused on personal circumstances, including his wife's pregnancy and inability to travel, rather than addressing the non-approval of the nomination.

As the essential criterion of an approved nomination had not been met, the Tribunal found that the applicant did not satisfy the requirements for the visa in the Temporary Residence Transition stream. Consequently, the Tribunal affirmed the decision not to grant the applicants the Employer Nomination (Permanent) (Class EN) visas.