Lekvijitthada (Migration)

This matter concerned an application for review of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant, Mr Lekvijitthada, sought to have the Department of Home Affairs' refusal decision set aside. The Administrative Appeals Tribunal (the Tribunal) was tasked with determining whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination for the position in question. Clause 186.223 of the Migration Regulations 1994, as applicable, stipulated that for a Subclass 186 visa, the nominated position must be the subject of an approved nomination, and that nomination must not have been subsequently withdrawn. Furthermore, the nomination must identify the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal's reasoning focused on the status of the nomination. It noted that the Department had refused the nomination on 5 April 2018, and this refusal was subsequently affirmed by the Tribunal on 23 August 2020. Consequently, the Department's decision refusing the nomination stood, meaning the relevant nomination had not been approved. The Tribunal communicated this to the applicant, inviting comment, but ultimately concluded that the applicant had not satisfied the requirement of being the subject of an approved nomination.

Accordingly, the Tribunal affirmed the decision under review. The Tribunal found that the applicant had not met the requirements for the Subclass 186 visa in the Temporary Residence Transition Scheme, as the essential criterion of an approved nomination had not been satisfied.