Khandaker (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant sought review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of his nomination application. The applicant's visa application was dependent on an approved nomination.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause outlines the criteria for a nominated position in the Temporary Residence Transition stream, including that the position must be the subject of an approved nomination that identifies the visa applicant, and that the nomination has not been withdrawn and no adverse information is known to the Department of Immigration.

The Tribunal reasoned that a delegate of the Minister had refused the nomination application, and a differently constituted member of the Tribunal had affirmed that refusal. Consequently, the applicant was not the subject of an approved nomination as required by clause 186.223. The applicant's submissions regarding his employment history, difficulties in returning to Bangladesh, and concerns about the Covid-19 pandemic, as well as his request for a postponement to find a new sponsor or apply for another visa, were noted but did not alter the fundamental requirement of an approved nomination.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas. As the primary applicant had not satisfied the primary criteria for the visa, the applications of his family members were not reconsidered.