Moran (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 review of a decision by the Tribunal which affirmed the Department's refusal to approve the nominated position of Solid Plasterer. The decision was made by Member Mary Sheargold.

The primary legal issue before the Tribunal was whether the applicant's nominated position was the subject of an approved nomination, as required by clause 186.223 of the Migration Regulations. This clause necessitates that the nomination has been approved, not subsequently withdrawn, and that the position remains available to the applicant, among other conditions. The Tribunal was also required to consider whether it could proceed to a decision in the absence of a response from the applicant to information provided by the Tribunal.

The Tribunal reasoned that the applicant's nominating employer, Spreadwell Construction Pty Ltd, had its application to approve the nominated position refused by a delegate of the Minister. This decision was subsequently affirmed by the Tribunal itself. Consequently, the nomination for the position had not been approved. The Tribunal had notified the applicant of this critical fact and invited comments by a specified date, warning that failure to respond would result in the Tribunal proceeding to a decision based on the available evidence. As the applicant did not respond to this notification, the Tribunal concluded that the applicant had failed to satisfy the requirement of an approved nomination, which is essential for the grant of a Subclass 186 visa in the Temporary Residence Transition stream.

Accordingly, the Tribunal affirmed the decision not to grant the applicant the visa.