Karki (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the Direct Entry stream. The applicant sought review of a decision by a delegate of the Minister to refuse the visa. The core of the dispute revolved around whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994, specifically concerning the nomination of the position.

The Tribunal was required to determine whether the applicant satisfied the criteria for an approved nomination in the Direct Entry stream, as stipulated by clause 186.233. This included assessing whether the nominated position was properly identified, whether the nominator was the prospective employer, if the nomination had been approved and not withdrawn, and if there was any adverse information concerning the nominator or associated persons. The Tribunal also had to consider whether the position remained available and if the visa application was lodged within the prescribed timeframe after the nomination approval. Furthermore, the Tribunal considered the applicant's claims of being a victim of fraud by their migration agent and whether these circumstances warranted Ministerial intervention.

The Tribunal affirmed the delegate's decision, finding that the nomination application lodged by Spartan Steel Pty Ltd in respect of the applicant had been refused on 14 June 2023. As an approved nomination is a mandatory requirement for the grant of a Subclass 186 visa, the Tribunal concluded that the applicant did not meet this essential criterion. While acknowledging the potential financial difficulties the applicants might face if required to leave Australia, the Tribunal determined that the circumstances did not justify Ministerial intervention, and therefore, the matter was not referred. The Tribunal noted that the applicants retained the option to make a direct request to the Minister.