Modi (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the temporary residence transition stream. The applicant sought to have a decision of the Minister for Home Affairs, which refused to approve a nominated position, reviewed by the Tribunal. The Tribunal, constituted by Amanda Mendes Da Costa, was required to determine whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of the Migration Regulations 1994. This clause requires, among other things, that the position to which the visa application relates must be the subject of an approved nomination that has not been withdrawn, that there is no adverse information known to Immigration concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the application for approval of the nominated position made by the prospective employer, Sonia Verma, had been refused by a delegate of the Minister. This refusal was subsequently affirmed by the Tribunal itself on 11 May 2021. Consequently, the Tribunal was not satisfied that the position was the subject of an approved nomination. As this primary criterion was not met, the Tribunal concluded that the applicant did not satisfy the requirements for the Subclass 186 visa in the temporary residence transition stream, and therefore, the second applicant, as a family member, also did not meet the criteria. The Tribunal affirmed the decision not to grant the applicants the visas.