Mwongera (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant sought this visa based on a nomination for the position of cook by the Foundation for Education and Training. The core dispute revolved around whether the applicant met the requirements for this visa subclass, specifically concerning the approval of the nominated position.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 186.223 of the Migration Regulations. This clause mandates that for the Temporary Residence Transition stream, the nominated position must have been approved under regulation 5.19(3). Crucially, the applicant must have been identified in the nomination as the relevant visa holder, and the nomination itself must have been approved. The Tribunal also considered whether certain documents, including information about the employer's sponsorship obligations and a three-month bar imposed on the employer, were relevant to the determination of the applicant's eligibility.

The Tribunal reasoned that the applicant's eligibility hinged on the approval of the nomination by the Foundation for Education and Training. The evidence indicated that this nomination was refused on 1 December 2016. Consequently, as the nomination was not approved, the delegate correctly found that the applicant did not meet clause 186.223(2). The Tribunal determined that information regarding the employer's sponsorship status or any alleged payment discrepancies was not relevant to the central question of whether the nomination itself had been approved. The Tribunal affirmed the decision not to grant the visa.