KUMAR (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant sought to have a decision refusing this visa affirmed. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically concerning an approved nomination.

The central legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the nomination for the position has been approved by the Minister and has not been withdrawn. The Tribunal also considered whether the position remained available to the applicant and if the visa application was made within six months of the nomination's approval.

The Tribunal found that the nomination application for the position relevant to the applicant's visa application had been refused by the Department. Although a review application was lodged with the Tribunal, this review application was also affirmed. The applicant failed to provide any response or comment on this crucial information. Consequently, as the nomination had not been approved, the Tribunal concluded that the applicant did not meet the criteria in cl.186.223(2). Since the applicant had only sought to satisfy the criteria for the Temporary Residence Transition stream and had not met the essential requirements for that stream, the decision under review had to be affirmed.

The Tribunal affirmed the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.