Kusafuka (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream. The applicant sought to have a decision affirmed by the Administrative Appeals Tribunal, which had previously affirmed a delegate's decision not to grant the visa. The core of the dispute revolved around whether the applicant had an approved nomination that had not been withdrawn, as required by the relevant migration regulations.

The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, particularly clause 186.223, which outlines the requirements for an approved nomination. This clause necessitates that the nominated position be the subject of an approved nomination application that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information known to the Department about the nominator or associated persons (or such information is reasonable to disregard), that the position remains available, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered the status of secondary applicants who were members of the primary applicant's family unit.

The Tribunal reasoned that the nominator's application for approval of the nomination had been refused by the Department on 27 November 2017, and this decision was affirmed by the Tribunal on 18 January 2021. Consequently, the Tribunal found that clause 186.223 was not met because the nomination had not been approved. The Tribunal also noted that there was no information before it to suggest that the secondary applicants met the primary criteria for the visa, and as the primary applicant did not satisfy the criteria, the secondary applicants' applications also failed.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.