Kaur (Migration)

The Administrative Appeals Tribunal, with Member Keith Kendall presiding, considered an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The primary applicant sought this visa, and two secondary applicants, family members, were also involved. The core dispute revolved around whether the primary applicant met the requirements for the visa, particularly concerning an approved nomination for the position of Cook.

The Tribunal was required to determine if the applicant satisfied the criteria under clause 186.223(2) of Schedule 2 to the Migration Regulations 1994. This clause mandates that the position to which the visa application relates must be the subject of a nomination application that has been approved by the Minister, and that the applicant must be identified in that nomination. Further, the nomination must not have been withdrawn, there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be reasonably disregarded), the position must remain available, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal's reasoning focused on the fact that the nomination application for the position of Cook had previously been refused by the Department and this refusal was affirmed by the Tribunal on 28 October 2019. As the nomination application had been refused, it followed that the Minister had not approved the nomination. Consequently, the primary applicant could not satisfy the requirement of being the subject of an approved nomination under clause 186.223(2). Given that 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 concluded that the primary applicant did not meet the criteria for the visa.

As the primary applicant did not satisfy the criteria for the Subclass 186 visa, the secondary applicants, as family members, could not satisfy the criteria under clause 186.311, which requires the primary applicant to have met the criteria for the grant of the visa. Therefore, the Tribunal affirmed the decisions not to grant the Employer Nomination (Permanent) (Class EN) visas to all applicants.