LIU (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The primary applicant, identified as "the first named applicant," sought this visa based on an approved nomination by Fortune Palace Seafood Restaurant Pty Ltd. The second named applicants were seeking to be included as family members. The Administrative Appeals Tribunal (AAT) was required to review the decision to refuse these visa applications.

The central legal issue before the Tribunal was whether the primary applicant met the criteria for a Subclass 186 visa in the Temporary Residence Transition stream, specifically as outlined in clause 186.223. This clause requires, among other things, that the nominated position has been approved and has not been withdrawn, that the position remains available, and that the visa application is made within six months of the nomination's approval. The Tribunal also had to consider whether the second named applicants met the secondary criteria as family members or primary criteria in their own right.

The Tribunal reasoned that the primary applicant had not satisfied clause 186.223 because the nomination lodged by Fortune Palace Seafood Restaurant Pty Ltd had not been approved at the time of the Tribunal's decision. Consequently, the primary applicant failed to meet the essential requirements for the visa. As the primary applicant's claim was unsuccessful, the Tribunal also affirmed the decision not to grant the visas to the second named applicants, as they did not meet the secondary criteria for family members and had not demonstrated they met the primary criteria for the subclass or any other within Class EN. The Tribunal therefore affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas.