Mathew (Migration)

This matter concerned an application for an Employer Nomination Scheme (subclass 186) visa, specifically within the Temporary Residence Transition stream. The applicant sought to have a decision of the Minister for Home Affairs affirmed. The Tribunal was tasked with determining whether the applicant met the relevant criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant had an approved nominating sponsor and position in which to be engaged in employment, as required by clause 186.223 of Schedule 2 to the Migration Regulations. This clause necessitates that the position be the subject of an approved nomination that identifies the visa applicant, that the nominator is the intended employer, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was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. A secondary issue arose concerning the secondary applicant, Ms. Nishitha Gerison, who claimed status as a member of the primary applicant's family unit.

The Tribunal found that the nomination application lodged by My Mechanic Coburg [Vic] Pty Ltd had been refused and no review application had been lodged. Consequently, the applicant had not provided evidence demonstrating that he was the subject of an approved nomination under regulation 5.19, as required by clause 186.223(2). As this primary criterion was not met, the Tribunal concluded that the applicant did not satisfy the requirements for the visa. Furthermore, because the primary applicant did not meet the criteria for the visa, the secondary applicant, Ms. Gerison, could not satisfy clause 186.311, which requires being a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria.

Accordingly, the Tribunal affirmed the decision not to grant the applicants Employer Nomination Scheme (subclass 186) visas.