Kamau (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically the Temporary Residence Transition stream. The applicant sought review of the refusal of her nomination application, which was lodged by her employer, Foundation for Education and Training Limited.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates, among other things, that a nomination must have been approved and not subsequently withdrawn, and that there must be no adverse information known to the Department about the nominator or associated persons, or any such information must be reasonable to disregard.

The Tribunal affirmed the delegate's decision to refuse the nomination application. The delegate had found that the employer, Foundation for Education and Training Limited, had been sanctioned under s.140M(2) and barred for three months from making future applications for approval as a standard business sponsor. The delegate considered this sanction to be adverse information, which prevented the nomination from meeting the requirements of clause 186.223(2). The applicant argued that the sanction arose from a minor, inadvertent underpayment to her, which had been rectified, and that the nomination and visa applications were lodged before the sanction decision. However, the Tribunal found that the existence of adverse information, regardless of its cause or the applicant's belief about its impact, was a bar to the nomination's approval under the relevant regulations.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, as the essential criteria for the Temporary Residence Transition stream had not been satisfied due to the unaddressed adverse information concerning the employer.