MUSHTAQ (Migration)

This matter concerned an appeal by an applicant, Mr. Mushtaq, against a decision by the Minister to refuse an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant sought to have the decision reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223(2) of the Migration Regulations 1994, which stipulates that the Minister must have approved the nomination. This clause, in turn, requires that the nominated position be the subject of an approved nomination application that identifies the visa applicant, has not been withdrawn, and for which there is no adverse information known to Immigration, or such information is reasonable to disregard. Further, the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal considered that the employer nomination had been refused by the delegate of the Minister. The applicant's employer had lodged an application with the Tribunal to review this refusal. At the hearing, the Tribunal informed the applicant that the employer nomination refusal had been affirmed on 6 July 2020, as the application was lodged prior to the applicant holding his Subclass 457 visa for the requisite two years, thus failing to meet subregulation 5.19(3)(c)(i). The applicant attributed the issues to his previous legal representative and employer, explaining he had been paid cash in hand and worked extensively. He requested an indefinite adjournment to lodge a new employer nomination for different cuisines, citing COVID-19 related hiring freezes. The Tribunal declined to grant an indefinite adjournment but offered 14 days for further submissions, which the applicant did not request.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Subclass 186 visa, finding that the applicant did not meet the relevant criteria. The secondary applicants were also found not to meet clause 186.311.