Olivier (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant sought to have a decision affirmed by the Administrative Appeals Tribunal (the Tribunal) which had refused to grant the visa. The Tribunal, constituted by Member Mary Sheargold, was tasked with reviewing the decision to refuse the visa.

The central legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 186.223 of the Migration Regulations 1994, which pertains to the nomination of a position for the visa. Specifically, the Tribunal had to determine if there was an approved nomination for the position of Baker, as required for the applicant to be eligible for the visa. This involved considering whether the nominating employer's application for approval of the nomination had been successful and if the nomination met all the stipulated criteria.

The Tribunal's reasoning focused on the fact that the applicant's nominating employer, Spintold Pty Ltd, had applied for approval of the Baker position, but this nomination was refused by a delegate of the Minister. Although the employer sought a review of this refusal, the Tribunal had previously affirmed the Department's decision not to approve the nomination. The Tribunal notified the applicant of this critical information, explaining that an unapproved nomination meant the applicant could not satisfy a key requirement for the visa. The applicant was invited to respond to this information but failed to do so by the specified deadline. Consequently, the Tribunal concluded that the applicant had not met the requirements for the Temporary Residence Transition stream, as there was no approved nomination.

As a result of the applicant failing to satisfy the essential criterion of having an approved nomination, the Tribunal affirmed the decision under review. Therefore, the Tribunal made an order affirming the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.