Kiriella Gurunnanselage (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) in its Temporary Residence Transition stream. The applicant sought review of a decision not to grant this visa. The Tribunal, constituted by Sean Baker, made its decision without the applicant's appearance, having been satisfied that the applicant was properly invited to a hearing and that a reasonable period was allowed for attendance.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.311 of the Migration Regulations, which requires the applicant to be a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria. The definition of "member of the family unit" includes both married and de facto partners. The applicant had previously claimed to be a member of his ex-wife's family unit.

The Tribunal found that the evidence, including divorce documents and statements from the applicant and his ex-wife, clearly established that the applicant and his ex-wife were no longer in a relationship. Consequently, the Tribunal concluded that the applicant was not a member of his ex-wife's family unit and therefore did not satisfy clause 186.311. Furthermore, the Tribunal noted that there was no evidence to suggest the applicant could meet the primary criteria for the Subclass 186 visa in any stream, and specifically that the requirements for the Temporary Residence Transition stream had not been met. Accordingly, the Tribunal affirmed the decision not to grant the visa.