Kibrea (Migration)

The Administrative Appeals Tribunal considered an application for Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), Direct Entry stream, made by the applicants. The primary applicant sought to obtain this visa, and the secondary applicant sought to accompany them. The core dispute revolved around whether the applicants met the criteria for the visa, specifically concerning an approved nomination for the position offered to the primary applicant.

The legal issues before the Tribunal were whether the primary applicant satisfied the requirements of clause 186.233 of the Migration Regulations 1994, which mandates that the position be the subject of an approved nomination. This included whether the nomination identified the applicant, was made by the prospective employer, had been approved and not withdrawn, and if there was any adverse information concerning the nominator. Furthermore, the Tribunal had to determine if the visa application was made within six months of the nomination's approval and if the position remained available. The Tribunal also considered the eligibility of the secondary applicant, which was contingent on the primary applicant meeting the criteria.

The Tribunal's reasoning focused on the requirement for an approved nomination. It noted that the Department had initially refused the visa application because the nomination had been refused. Subsequently, a new nomination lodged by STEVEN MEDAK ATF MEDAK TRUST was finalised as a non-reviewable decision by the Tribunal. The Tribunal explained that this later nomination could not satisfy the requirement for an approved nomination in relation to the original visa application, as the criteria stipulated that the application must relate to the nominated position and that a later nomination could not fulfil this. The primary applicant explained their employment history and their current visa status, but this did not overcome the fundamental issue with the nomination.

Consequently, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants. The Tribunal found that the primary applicant did not satisfy the primary criteria due to the lack of a valid, approved nomination. As the secondary applicant's eligibility depended on the primary applicant meeting the primary criteria, their application was also affirmed.