Kaur (Migration)

This matter concerned the review of a decision by the Department of Home Affairs to refuse a Subclass 186 Employer Nomination (Permanent) (Class EN) visa application. The primary applicant, Ms Kaur, sought to satisfy the criteria for the Temporary Residence Transition stream, with her husband, Mr Malhans, included as a member of the family unit. The applicants were located in a third country and did not provide a substantive response to the Tribunal's invitation to comment on adverse information or appear at the hearing.

The Tribunal was required to determine whether the nomination of the position of Hairdresser (ANZSCO 391111) in respect of Ms Kaur had been approved, as required by clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the nomination must have been approved and not subsequently withdrawn, that there be no adverse information known to Immigration, that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal reasoned that the company's nomination application was refused by the Department on 17 December 2018, and although the company sought review, the Tribunal affirmed the Department's refusal on 3 November 2021. Despite being granted an extension of time to respond to adverse information, the applicants failed to provide any comments or attend the scheduled hearing. Consequently, the Tribunal found that the nomination had not been approved, meaning Ms Kaur did not meet the criteria under cl.186.223(2). As Ms Kaur did not meet the primary criteria for the visa, Mr Malhans, as a member of the family unit, also did not meet the criteria for the grant of his visa.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.