Kaur (Migration)

The Administrative Appeals Tribunal considered a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, for the first applicant, and a consequential refusal for the second applicant as a member of the family unit. The nomination for the position of cook was lodged by Nanaksar Transport Pty Ltd T/A Tandoori Indian Restaurant Ltd on behalf of the first applicant.

The primary legal issue before the Tribunal was whether the first applicant met the requirements of clause 186.223 of the Migration Regulations 1994, which governs the nomination of a position for this visa subclass. Specifically, the Tribunal had to determine if the nominated position had been approved by the Minister at the time of the Tribunal's decision. The Tribunal also considered whether the second applicant met the secondary criteria to be a member of the family unit of a Subclass 186 visa holder, or the primary criteria in their own right.

The Tribunal reasoned that clause 186.223(2) requires the Minister to have approved the nomination. Based on the evidence before it, the Tribunal found that the nomination had not been approved at the time of its decision. Consequently, the Tribunal concluded that the first applicant did not meet the requirements of clause 186.223. As the requirements for the Temporary Residence Transition stream were not met, the Tribunal affirmed the decision not to grant the visa. The Tribunal also affirmed the refusal for the second applicant, finding they did not meet the secondary criteria as a family member and had not demonstrated they met the primary criteria for this or any other subclass within Class EN.

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