KERIVAN (Migration)

This matter concerned an application for an Employer Nomination (Permanent) visa (Subclass 186) in the Temporary Residence Transition stream. The applicant sought review of a decision affirming the refusal of their visa application. The core of the dispute revolved around whether the nominated position met the requirements of the relevant regulations, specifically clause 186.223 of the Migration Regulations 1994.

The Tribunal was required to determine whether the nominated position was the subject of an approved nomination, as mandated by clause 186.223(2). This criterion requires that the Minister has approved the nomination. The applicant had been identified in the nomination as a Subclass 457 visa holder, and the nomination related to the position declared in the visa application. However, the Department had refused the nomination on 4 January 2017, a decision that was subsequently affirmed by the Tribunal on 20 August 2018.

The Tribunal reasoned that for an applicant to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream, the nomination must have been approved. As the nomination in this case had been refused by the Department and that refusal was affirmed by the Tribunal, the essential requirement of an approved nomination under clause 186.223(2) was not met. The applicant was invited to provide comments on this issue but failed to do so within the prescribed period, leading to the application of section 359C of the Migration Act 1958 and the Tribunal proceeding without further comment.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not met the necessary criteria for the visa. The Tribunal concluded that as the requirements for the Temporary Residence Transition stream had not been satisfied, the visa could not be granted.