KAUR (Migration)

This matter concerned an application by Ms Kaur for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically under the Temporary Residence Transition stream. The sponsoring company's nomination for Ms Kaur's position as a Café or Restaurant Manager was refused by the Department. A differently constituted Tribunal had previously determined it lacked jurisdiction to review this refusal. The applicant sought review of the decision not to grant her the visa.

The primary legal issue before the Tribunal was whether Ms Kaur met the requirements of cl.186.223(2) of Schedule 2 to the Migration Regulations 1994, which mandates that the Minister has approved the nomination for the position. The Tribunal was also required to consider the broader criteria under cl.186.223, including that the nomination has not been withdrawn, there is no adverse information concerning the nominator or associated persons, the position remains available, and the visa application was made within six months of the nomination approval.

The Tribunal reasoned that as the company's nomination application had been refused by the Department and this refusal was not subject to review by the Tribunal, the essential criterion under cl.186.223(2) that the nomination must be approved had not been met. Consequently, Ms Kaur could not satisfy the requirements for a Subclass 186 visa in the Temporary Residence Transition stream.

The Tribunal affirmed the decision not to grant Ms Kaur the Employer Nomination (Permanent) (Class EN) visa.