Kaur (Migration)

This matter concerned an appeal before the Tribunal regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant sought this visa based on an employer nomination made by Spice of Life Authentic Indian Cuisine Pty Ltd, identifying her as a relevant 457 visa holder. The secondary applicants sought the visa as members of the first applicant's family unit.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically subclause (2) which requires that the nomination has been approved by the Minister. The applicant also requested that the Tribunal refer her case to the Minister under section 351 of the Migration Act 1958.

The Tribunal reasoned that the Department had refused to approve the employer's nomination on 28 March 2018. As it was not disputed that the nomination was refused, the applicant could not satisfy clause 186.223(2). The Tribunal noted that it had no discretion to waive this requirement. While the Tribunal considered the applicant's request for a referral to the Minister, it decided not to make such a referral, informing the applicant that she could make a direct request to the Minister. As the applicant failed to meet a mandatory criterion for the visa, the Tribunal affirmed the decision not to grant the visa to the applicant and, consequently, to the secondary applicants.