MAHARJAN (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) under the Temporary Residence Transition stream. The primary applicant sought this visa for a position as an Accountant (General). The central dispute revolved around whether the nominated position had an approved nomination as required by the relevant regulations.

The Tribunal was required to determine whether the nominated position met the criteria outlined in clause 186.223 of the Migration Regulations 1994. This clause mandates that the position must be the subject of an approved nomination application that identifies the visa applicant, and that the nomination must have been approved and not subsequently withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal's reasoning focused on the fact that the application for approval of the nominated position, made by the nominator, had been refused. This refusal was upheld on review by the Tribunal itself on 7 August 2020. Consequently, the nominator's application for the nominated position had not been approved. The Tribunal explained that because the position specified in the visa application was not the subject of an approved nomination, the primary applicant did not satisfy a fundamental requirement for the grant of the visa. The applicants provided a written response detailing the nominator's business operations and the applicant's contribution, but this did not alter the fact that the nomination itself had not been approved.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants. As the primary applicant did not satisfy the criteria for the visa, the Tribunal found that the other applicants, who sought to be granted visas as members of the primary applicant's family unit, also did not meet the requirements.