Kamaldeep Kaur (Migration)

The Administrative Appeals Tribunal considered the case of Kamaldeep Kaur, the applicant, who sought review of a decision to refuse her Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The dispute centred on whether the applicant met the requirements for this visa subclass, specifically concerning an approved nomination for the position of Cook.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223(2) of the Migration Regulations 1994. This clause requires that the position nominated must have been the subject of an approved nomination application that identified the primary visa applicant, and that this nomination has not been withdrawn. Further, it requires that there be no adverse information known to Immigration about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the applicant's employer's nomination application had been refused by the Department on 28 November 2017. While the applicant suggested reasons for this refusal, the Tribunal found these reasons irrelevant to the core issue of whether an approved nomination existed. The Tribunal noted that a subsequent attempt by the nominator to seek review of the refusal was unsuccessful because the nominator had been deregistered prior to the review application. Consequently, there was no approved nomination and no pending review that could alter the refusal decision. The Tribunal also affirmed the decision not to grant a visa to the second applicant, as he did not meet the criteria for being a family member of a Subclass 186 visa holder and had not demonstrated he met the primary criteria in his own right.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.