Kharel (Migration)

This matter concerned an appeal by the applicant, Mr Kharel, against a decision to refuse him an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The core of the dispute revolved around whether the nomination of the position by AYDINMAINTENANCE Pty Ltd had been approved, a prerequisite for the visa.

The Tribunal was required to determine whether the applicant had satisfied the criteria for the Subclass 186 visa, particularly clause 186.223 of Schedule 2 to the Regulations. This clause mandates, among other things, that the nominated position must have been approved by the Minister and not subsequently withdrawn, and that the visa application must be made within six months of the nomination's approval. The Tribunal also considered the applicant's submissions regarding personal sacrifices and a desire to continue studies, though it noted its role was limited to reviewing the visa decision and not to grant visas for study purposes.

The Tribunal found that the nomination made by AYDINMAINTENANCE Pty Ltd had been refused by the Department of Home Affairs on 5 January 2018. An subsequent application for review of this refusal by AYDINMAINTENANCE Pty Ltd was dismissed by the Tribunal for lack of jurisdiction on 15 October 2019. Consequently, the Department's original decision to refuse the nomination remained in effect. As an approved nomination was a fundamental requirement for the visa, and this had not been met, the Tribunal concluded that the applicant had failed to satisfy clause 186.223(2) and, by extension, the overall criteria for the visa.

The Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa.