Kaur (Migration)

The Administrative Appeals Tribunal considered the case of Kaur, an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The dispute centred on whether the applicant met the requirements for this visa subclass, specifically concerning the necessity of an approved nomination.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria under clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates that for the Temporary Residence Transition stream, the position must be the subject of an approved nomination application, and the applicant must have been identified as the relevant visa holder in that nomination. Further requirements include the nomination not being withdrawn, no adverse information being known to the Department, the position remaining available, and the visa application being lodged within six months of the nomination's approval.

The Tribunal reasoned that the applicant's employer's nomination application had been refused by the Department and this decision was affirmed by the Tribunal. The applicant conceded that the nomination had not been approved and that the business had since closed. While the Tribunal acknowledged the applicant's difficult circumstances and lack of control over the business closure, it found it had no discretion to waive the requirement for an approved nomination. As the nomination application was not approved, clause 186.223 was not met. Consequently, the Tribunal affirmed the decision not to grant the Subclass 186 visas to the applicant and her spouse and children, as they did not meet the primary or secondary visa criteria.