nabunat (Migration)

This matter concerned an appeal by the applicant against the refusal of an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme direct entry stream. The core of the dispute revolved around the approval of the nominated position, which the Tribunal had not granted. The applicant, who had been working in Australia for many years, sought to have the decision reviewed.

The legal issue before the Tribunal was whether the nominated position met the requirements of clause 186.233(3) of the Migration Regulations 1994. This clause mandates that the nominator must have had their nomination approved, that the position must be available, and that the visa application must be made within six months of the nomination's approval, among other criteria. The Tribunal was required to determine if the nomination made by Frangipani Gentle Care Group Homes Pty Ltd for the applicant's position as a Registered Nurse (Aged Care) had been validly approved.

The Tribunal's reasoning was that it had not approved the nomination, and therefore, the criterion under clause 186.233(3) was not met. Despite the applicant's extensive immigration history in Australia since 2005, her long-term employment in the aged care sector, and the support of her current employer, the fundamental requirement of an approved nomination had not been satisfied. The Tribunal acknowledged the applicant's long settlement in Australia, the value of her skills, particularly given the current demand in aged care, and the educational integration of her children.

Consequently, the Tribunal affirmed the decision not to grant the visa. However, the Tribunal considered the circumstances to be unique or exceptional, warranting referral to the Minister for consideration of discretionary intervention powers under section 351 of the Migration Act 1958. The applicants were advised to provide further documentation to the Minister regarding their skills and community integration.