KAUR (Migration)

This matter concerned an application for Employer Nomination (Permanent) (Class EN) visas, Subclass 186, under the Temporary Residence Transition stream. The primary applicant sought to have the decision to refuse the nomination affirmed. The Tribunal was required to determine whether the primary visa applicant met the criteria for the grant of the visa, specifically in relation to an approved nomination for the position of Web Developer.

The central legal issue was whether the nomination for the Web Developer position had been approved, as required by clause 186.223 of the Migration Regulations. This clause mandates that the position must be the subject of an approved nomination that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information known to Immigration, or any such information is reasonable to disregard. Furthermore, the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal noted that while a declaration had been made in relation to the nominated position and the applicant was identified as a Subclass 457 visa holder, a related AAT casefile had affirmed the decision to refuse the nomination on 14 June 2020. The Tribunal put to the applicant that the absence of an approved nomination meant the criteria under clause 186.223(2) would not be met, leading to the application's likely failure. The Tribunal applied the principles of the Migration Regulations, finding that as the nomination had not been approved, the applicant could not satisfy the necessary criteria for the visa.

Consequently, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants, including any claimed members of the same family unit as the primary applicant.