MANCHANDA (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically under the temporary residence transition stream. The applicants sought to have an approved position nomination for the visa. However, the nomination application had previously been refused by the Tribunal. The Tribunal had invited the applicants to comment on the proposed decision to affirm the refusal, but no response was received.

The primary legal issue before the Tribunal was whether the applicants had satisfied the criteria for a Subclass 186 visa under the temporary residence transition stream, particularly clause 186.223. This clause requires, among other things, that the nominated position be the subject of an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval. Additionally, the Tribunal considered clause 186.311 concerning applicants who are members of the family unit of a primary applicant.

The Tribunal reasoned that the nomination made by Shashi Beauty Salon Pty Ltd for the position of Hairdresser was refused on 15 January 2020. As this nomination was not approved, clause 186.223(1) could not be met. The Tribunal also noted that the applicants did not respond to its invitation to comment on the proposed decision, allowing the Tribunal to proceed under section 359C(1) of the Migration Act 1958. Furthermore, the Tribunal found that the other named applicants did not satisfy clause 186.311(a) as they were not members of the family unit of a primary applicant who held a Subclass 186 visa granted on the basis of satisfying primary criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.