Kaur (Migration)

The Administrative Appeals Tribunal, with Member Cathrine Burnett-Wake presiding, considered the case of Ms Kaur and her family concerning their applications for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The central dispute revolved around whether the applicants met the eligibility criteria for this visa subclass, particularly the requirement for an approved nomination.

The primary legal issue before the Tribunal was to determine if the applicants satisfied the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates, among other things, that the position to which the visa application relates must be the subject of an approved nomination that has not been withdrawn, and that the visa application must be made within six months of the nomination's approval. The Tribunal also had to consider the secondary criteria for the spouse and children of the primary applicant under clause 186.311.

The Tribunal reasoned that the Department of Immigration had refused the Company's nomination application. Although a review application was lodged with the Tribunal, that review application was affirmed, meaning the nomination remained unapproved. As the nomination application had not been approved, the applicants could not meet the criteria stipulated in clause 186.223(2). Furthermore, the applicants failed to provide any response or comment to the information regarding the unapproved nomination. Consequently, the Tribunal found that the primary applicants did not meet the essential criteria for the Subclass 186 visa in the Temporary Residence Transition stream. The Tribunal also affirmed the decision to refuse visas to the second, third, and fourth applicants, as they did not meet the secondary criteria as family members and had not demonstrated they met the primary criteria in their own right. The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.