Khatoon (Migration)

This matter concerned an application for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The applicants sought to have a decision affirmed by the Tribunal, which had refused their visa applications. The primary dispute revolved around whether the applicants met the criteria for the visa, particularly concerning an approved nomination.

The legal issues before the Tribunal were whether the applicants satisfied clause 186.223 of the Migration Regulations 1994, which requires the position to be the subject of an approved nomination that has not been withdrawn, and whether the applicants' family members met the criteria for inclusion in the visa application. The applicants also requested that the Tribunal consider referring their case to the Minister for intervention under section 351 of the Migration Act 1958, should their review application be unsuccessful.

The Tribunal reasoned that the applicants had acknowledged that the primary applicant was not the subject of an approved nomination by the employer, AIT Pty Ltd, or any other employer. Furthermore, the Tribunal noted that it had previously affirmed the Department's decision to refuse the nomination. Consequently, the Tribunal found that the primary applicant could not meet clause 186.223(2) and therefore could not meet clause 186.223 as a whole. The Tribunal also found that the secondary applicants, as family members, could not meet clause 186.311 as there was no evidence they met the primary visa criteria in their own right. The Tribunal affirmed the decision not to grant the visas.