Kaur (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, for the position of Restaurant Manager. The applicant was nominated by the Trustee for William Family Trust trading as Dawat Indian Restaurant. The Tribunal was required to determine whether the applicant satisfied the criteria for the visa, specifically clause 186.223(2) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether there was an approved employer nomination that had not been subsequently withdrawn, and whether other conditions related to the nomination, such as the absence of adverse information and the continued availability of the position, were met. The Tribunal also considered whether the visa application was made within six months of the nomination being approved.

The Tribunal noted that the applicant had been nominated in February 2017, but the Tribunal had affirmed the refusal of the employer nomination in September 2023. Consequently, there was no approved employer nomination. The applicant stated she could not contact the restaurant owner, believed the restaurant had been sold, and had been hospitalised. While acknowledging the applicant's difficult circumstances, the Tribunal granted a further 14 days for submissions. A response was received in April 2024, reiterating the inability to contact the sponsoring employer. The Tribunal found that no request for an adjournment or extension of time had been made and that it was reasonable to proceed to a decision. As there was no approved employer nomination, the Tribunal concluded that clause 186.223(2) and clause 186.223 were not met.

The Tribunal affirmed the decision under review because the applicant had failed to satisfy the mandatory criteria for a Subclass 186 visa in the Temporary Residence Transition stream, specifically the requirement for an approved employer nomination. No claims were made in respect of other visa streams.