KUMAR (Migration)

This matter concerned an application for review of a decision not to grant Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for the occupation of Cook. The applicant was the primary visa applicant, with secondary applicants also affected by the decision. The review was heard by the Tribunal.

The central legal issue before the Tribunal was whether the Minister had approved the nomination for the occupation of Cook in favour of the visa applicant, as required by clause 186.223 of the applicable regulations. This clause mandates, among other things, that the nomination must have been approved and not subsequently withdrawn, that there be no adverse information known to Immigration concerning the nominator or associated persons, that the position remains available, and that the visa application is made within six months of the nomination approval.

The Tribunal affirmed the decision not to grant the visas, finding that the primary applicant had not satisfied the essential criterion of an approved nomination. The Tribunal noted that the Department had refused the nomination, and the applicant had not responded to a request for information following this refusal. The Tribunal also observed that the applicant had not provided any further submissions or evidence since lodging the application for review, and the material on file did not demonstrate that the nomination had been approved. Consequently, as the primary applicant failed to meet this fundamental requirement, the secondary applicants were also unable to comply with the visa criteria.