Maini (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the temporary residence transition stream. The applicant sought to have the decision affirmed, and the Tribunal was required to determine whether the applicant met the relevant legislative criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant could satisfy the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the nominated position. This clause requires that the position to which the visa application relates must be the subject of an approved nomination, and that the visa application was made in relation to that specific nomination. The Tribunal also considered the impact of legislative amendments and previous judicial interpretations on the ability to rely on a new nomination if the original had been refused.

The Tribunal reasoned that the applicant's employer's nomination for the position had been refused, and this decision was affirmed on review. It was a critical requirement for the temporary residence transition stream that the position be the one in relation to which a specific declaration was made in the visa application. The Tribunal found, consistent with existing authority, that this requirement could not be satisfied by a subsequent nomination, even if it were for the same position and by the same employer, because it would not be the nomination in relation to which the original declaration was made. The Tribunal noted that the position itself must exist at the time the nomination is submitted.

Consequently, the Tribunal concluded that the applicant had not met the essential criteria for the Subclass 186 visa under the temporary residence transition stream. The Tribunal affirmed the decision not to grant the visa.