NAWAZ (Migration)

This matter concerned an appeal by the applicant, Mr. Nawaz, against the decision to refuse him an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Temporary Residence Transition stream. The decision under review was made by a delegate of the Department of Home Affairs, and the appeal was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the Subclass 186 visa, particularly clause 186.223, which pertains to the nomination of a position. This clause requires, among other things, that the nomination for the position has been approved by the Minister and has not been subsequently withdrawn. The Tribunal was also required to consider the impact of new information that had come to light regarding the employer's nomination application.

The Tribunal's reasoning focused on the fact that the employer's nomination application, lodged by Alnoor Logistics P/L, had been refused by a delegate of the Department on 19 July 2017. Subsequently, the Tribunal itself affirmed this decision to refuse the nomination application on 20 April 2020. The Tribunal noted that clause 186.223(2) explicitly requires the nomination to have been approved. As the nomination had been refused and this refusal was affirmed on review, the Tribunal concluded that the applicant could not meet this essential criterion. Despite being given an opportunity to comment on this development, the applicant provided no material response.

Consequently, the Tribunal was not satisfied that the applicant had met clause 186.223(2) of the Migration Regulations. As this criterion was a mandatory requirement for the Subclass 186 visa in the Temporary Residence Transition stream, and no claims were made in respect of other visa streams, the Tribunal affirmed the decision not to grant the applicant the visa.