Mariel (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the Direct Entry stream. The applicant sought to have the decision to refuse his visa affirmed, with a referral to the Minister for discretionary intervention. The core dispute revolved around whether the applicant met the specific criteria for the visa, particularly concerning an approved nomination for the position of Welder (First Class).

The Tribunal was required to determine if the applicant met the requirements of cl 186.233 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the nominated position was the subject of an approved nomination, whether the nominator was the intended employer, and whether the nomination had been approved and not withdrawn. Additionally, the Tribunal had to consider the applicant's request for a referral to the Minister under s 351 of the Migration Act 1958, which allows for substitution of a more favourable decision if the Minister believes it is in the public interest, based on unique or exceptional circumstances.

The Tribunal found that the applicant did not meet the requirements of cl 186.233 because the nomination application lodged by M Barakat Family Trust was refused on 5 October 2021, and the nominator did not seek merits review. Consequently, the position specified in the visa application was not the subject of an approved nomination. Despite this, the Tribunal considered the applicant's submissions regarding compassionate circumstances, including potential serious, ongoing, and irreversible harm to his Australian citizen wife and child, and the best interests of the child. The Tribunal concluded that these circumstances, along with potential exceptional economic benefit due to a labour shortage in the construction industry, warranted referral to the Minister for consideration under s 351.

The Tribunal affirmed the decision not to grant the applicant the visa. However, it referred the applicant's case to the Department for consideration by the Minister pursuant to s 351 of the Migration Act 1958, acknowledging that the applicant's circumstances, particularly those of his Australian citizen wife and child, merited such consideration.