Komite (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicants sought review of a decision to refuse their visa applications, which were based on a nomination for the position of Systems Administrator. The primary applicant alleged mistreatment by the nominator, Ahmer Arif Ismail, who subsequently closed his business, rendering the nominated position unavailable.

The central legal issue before the Tribunal was whether the nomination associated with the visa application had been approved, as required by clause 186.223 of the Migration Regulations. This clause mandates, among other things, that the nomination must have been approved, not subsequently withdrawn, and that the nominated position must still be available to the applicant. The Tribunal also considered whether there was any adverse information known to the Department about the nominator or associated persons, and the timeframe between nomination approval and visa application.

The Tribunal reasoned that the nomination itself had been refused by the Department on 24 October 2017, and this refusal was affirmed by the Tribunal on 13 March 2020. Consequently, a fundamental requirement of clause 186.223, namely that the nomination must be approved, was not met. The applicant's personal circumstances, including the closure of the business and his dispute with the nominator, while acknowledged, did not alter the fact that the prerequisite nomination approval was absent. The Tribunal noted that the applicant had not sought assistance for his personal difficulties.

Given that the primary applicant did not meet the essential requirement for an approved nomination, the Tribunal affirmed the decision not to grant the visa. As the other applicants were family members of the primary applicant, and there was no evidence they met the primary requirement independently, the decision was also affirmed in respect of the second and third named applicants.