Kaur (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, by the first named applicant, with secondary applicants also included. The core dispute revolved around whether the applicants met the criteria for the visa, specifically concerning an approved nomination. The decision was made by Mary Sheargold, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the first named applicant had satisfied clause 186.223(2) of Schedule 2 to the Migration Regulations 1994, which requires that the nomination for the position be approved. A secondary issue was whether the secondary applicants could satisfy clause 186.311, which depends on the first named applicant meeting the primary criteria.

The Tribunal reasoned that the nominating employer, I-FLUX Pty Ltd, had applied for approval of the position of Cook for the first named applicant. However, the Department had refused to approve this nomination, and the Tribunal affirmed that decision on 28 October 2019. Consequently, the Tribunal found that the first named applicant could not satisfy clause 186.223(2) because there was no approved nomination. The Tribunal noted that the nomination application had been lodged by the employer before the applicant had completed two years of work as a Subclass 457 visa holder, based on advice that her previous employment experience would be counted. As the first named applicant failed to meet the primary criteria, the secondary applicants, as members of her family unit, could not satisfy clause 186.311.

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