Kaur (Migration)

The applicant, Ms Kaur, sought review of a decision to refuse her Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 visa. The respondent was the delegate of the Minister for Immigration. The Tribunal was required to determine whether the applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether the nominated position for which the applicant applied was the subject of an approved nomination, as required by clause 186.223 of the Migration Regulations 1994. This clause mandates that the nomination must have been approved by the Minister, not subsequently withdrawn, and that the visa application must be made within six months of the nomination's approval, among other conditions.

The Tribunal reasoned that the applicant's nominating employer, Vihaan Enterprises Pty Ltd, had its application for approval of the nominated position refused by a delegate of the Minister. Consequently, there was no approved nomination. Both parties agreed that this factual situation meant that clause 186.223 was not met. As the applicant had only sought to satisfy the criteria for the Temporary Residence Transition stream and had failed to meet this essential requirement, the Tribunal affirmed the delegate's decision. The Tribunal also affirmed the refusal for the second and third applicants, who were family members, as they did not meet secondary criteria and had not demonstrated they could meet the primary criteria in their own right.