Mandeep Kaur (Migration)

This matter concerned an appeal by Mandeep Kaur against a decision to affirm the refusal of her Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The dispute centred on the validity of the nomination supporting her visa application, which had been refused by the Department. The case was heard by Nicola Findson of the Tribunal.

The primary legal issue before the Tribunal was whether Ms Kaur met the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination that has not been withdrawn, that the position remains available, and that the visa application was made within six months of the nomination's approval. The Tribunal was required to determine if Ms Kaur was the subject of an approved nomination, given that her nominating employer had ceased business and the nomination itself had been refused by the Department.

The Tribunal reasoned that clause 186.223 contains no discretionary factors, such as compassionate or compelling circumstances, that would allow for a waiver of its requirements. It was established that the Department had refused the nomination on 16 September 2022, and no review of this decision was sought by the nominator. Consequently, Ms Kaur was not the subject of an approved nomination as required by the regulations. The Tribunal also found that as Ms Kaur did not satisfy the primary criteria for the visa, any accompanying applicants also failed to meet the secondary criteria.

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