Malik (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream. The applicant's employer nomination had been refused by the Minister, and this decision was under review by the Tribunal. The applicant contended that the delay in processing the nomination had led to its failure, as the occupation under the franchise was no longer an approved business model for the relevant visa stream.

The Tribunal was required to determine whether the applicant was subject to an approved nomination as required by clause 186.233 of the Migration Regulations. This clause mandates that the nominated position must have been approved, not subsequently withdrawn, and that the applicant must be identified in the nomination. Further requirements include that the nominator must be the prospective employer, that there must be no adverse information known to Immigration, that the position must remain available to the applicant, and that the visa application must be made within six months of the nomination's approval.

The Tribunal found that the Minister, through a delegate, had refused the nomination application on 16 July 2019. Crucially, the reasons for this refusal and the Department's file were not before the Tribunal, and the Tribunal was unable to revisit the nomination refusal decision itself. Furthermore, there was no application for review of the nomination refusal by the sponsor, nor any extension of time sought for such an application. As the applicant could not satisfy the criteria of clause 186.233 due to the refused nomination, the Tribunal affirmed the decision not to grant the visa. Consequently, the applications of any secondary applicants dependent on the primary applicant's success also failed.