Kaur (Migration)

The Administrative Appeals Tribunal considered the case of Ms Kaur and other applicants seeking Employer Nomination (Permanent) (Class EN) visas, specifically under the Temporary Residence Transition stream of the Subclass 186 visa. The dispute arose when the nomination application lodged by Desi Cuts Hair and Beauty Salon Pty Ltd, identifying Ms Kaur as the visa applicant, was refused by the Minister for Immigration and Border Protection. The Tribunal was asked to review this refusal.

The primary legal issue before the Tribunal was whether the position nominated by Desi Cuts Hair and Beauty Salon Pty Ltd met the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates that the position must be the subject of an approved nomination that identifies the visa applicant, and that the nomination must have been approved and not subsequently withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the nomination application lodged by Desi Cuts Hair and Beauty Salon Pty Ltd was refused on 25 November 2016. This refusal was subsequently affirmed by the Tribunal on 1 August 2019. As the nomination had been refused and this decision was affirmed on review, the Tribunal concluded that clause 186.223 was not met. Consequently, as the applicants had only sought to satisfy the criteria for the Temporary Residence Transition stream and had failed to meet this essential requirement, the Tribunal found that the applicants did not satisfy clause 186.223 and, by extension, clause 186.311.

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