MOHAMMED (Migration)

This matter concerned an appeal before the Tribunal regarding the refusal of Employer Nomination (Permanent) (Class EN) visas, specifically Subclass 186 (Employer Nomination Scheme) visas under the Temporary Residence Transition stream. The applicant sought to have the decision to refuse their visa affirmed, along with the refusal of visas for secondary applicants. The core of the dispute centred on whether the applicant had met the requirements for an approved nomination for the position of Computer Network and Systems Engineer.

The Tribunal was required to determine whether the applicant had satisfied the criteria for a Subclass 186 visa, particularly clause 186.223(2) of Schedule 2 to the Migration Regulations, which mandates that the Minister must have approved the nomination and that it has not been subsequently withdrawn. Additionally, the Tribunal had to consider the implications for the secondary applicants, whose eligibility depended on the primary applicant being granted a Subclass 186 visa.

The Tribunal's reasoning focused on the fact that the nomination lodged by Ahmer Arif Ismail for the applicant's position was refused on 24 October 2017. This refusal was subsequently affirmed by the Tribunal on 19 December 2019. The applicant was provided with notice of this adverse information and invited to respond. As the nomination had not been approved by the Minister, the applicant could not satisfy clause 186.223(2). Consequently, the primary criteria for the visa grant were not met.

Given that the primary applicant did not meet the criteria for the grant of a Subclass 186 visa, the Tribunal also affirmed the decisions to refuse the visas of the secondary applicants. This was because they failed to satisfy clause 186.311, which requires them to be a member of the family unit of a primary applicant who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria. The Tribunal therefore affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.