Nisar (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme visa under the Temporary Residence Transition stream. The applicant sought review of a decision to refuse the visa, with the primary dispute revolving around whether the nomination for the position of Accountant with employer S & S Cabs Pty Ltd had been approved. The decision was made by Penelope Hunter, a Member of the Tribunal.

The legal issue before the Tribunal was whether the applicant had satisfied the criteria for the Subclass 186 visa, particularly clause 186.223 of Schedule 2 to the Migration Regulations. This clause requires, among other things, that the nomination for the position has been approved and has not been withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval.

The Tribunal reasoned that the approval of the nomination is a fundamental requirement for the grant of this visa. It noted that the nomination by S & S Cabs Pty Ltd had been refused by the Department on 7 July 2017, and this refusal was affirmed by the Tribunal on 3 March 2020. As the nomination had not been approved, the Tribunal concluded that the applicant had failed to meet clause 186.223(2) and, consequently, the overall requirements of clause 186.223. The Tribunal also addressed a Certificate of Non-Disclosure, finding it invalid and irrelevant to its decision.

Accordingly, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa.