KAUR (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant, Ms Kaur, sought review of a decision to refuse her nomination for a pastry cook position by Majorstone Pty Ltd. The Tribunal was required to determine whether the applicant met the requirements of clause 186.223 of the relevant regulations.

The central legal issue was whether the applicant satisfied clause 186.223, which outlines the criteria for a nominated position in the Temporary Residence Transition stream. Specifically, the Tribunal had to consider whether the nomination had been approved and had not been subsequently withdrawn, and whether the position remained available to the applicant. The applicant also raised concerns about not being informed of the nomination and her employer's actions.

The Tribunal reasoned that clause 186.223(2) mandates that the Minister must have approved the nomination of the position in respect of the applicant. In this case, the evidence indicated that the nomination had been refused by the Department on 16 November 2015. As this essential criterion was not met, the Tribunal concluded that clause 186.223 as a whole was not satisfied. Despite the applicant's submissions regarding her efforts and her employer's conduct, the Tribunal noted it had no discretion and was bound by the legislative requirements. The Tribunal affirmed the decision not to grant the visa.