Mehant (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically within the Temporary Residence Transition stream. The applicant sought to have a decision of the Tribunal affirmed, which had upheld a decision not to grant the visa. The primary applicant's claim was for the position of Cook, and the core of the dispute revolved around whether the nominated position had been approved by the Minister in accordance with the relevant legislative criteria.

The legal issue before the Tribunal was whether the nominated position met the requirements of clause 186.223 of the Migration Regulations 1994. This clause, as applicable to the Temporary Residence Transition stream, mandates several conditions, including that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, and that the nomination must have been approved and not subsequently withdrawn. Further requirements include the absence of adverse information concerning the nominator or associated persons, the continued availability of the position, and that the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that the applicant had not satisfied clause 186.223(2), which requires the Minister to have approved the nomination. As this essential criterion was not met, the Tribunal concluded that the applicant did not satisfy the requirements for a Subclass 186 visa in the Temporary Residence Transition stream. Consequently, as the primary applicant failed to meet the visa criteria, the secondary applicants, who were family members, also did not qualify for the visa. The Tribunal therefore affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.