PANNU (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the Temporary Residence Transition stream. The applicant sought to have the decision reviewed, having applied for the visa based on an employer nomination made by Fig & Olive Pty Ltd, where the applicant was identified as a 457 visa holder. The core of the dispute revolved around whether the nomination for the position had been approved, a crucial requirement for the visa subclass.

The Tribunal was required to determine if the applicant met the criteria set out in clause 186.223 of the applicable regulations. This clause mandates that the nominated position must be the subject of an approved nomination application that identifies the visa applicant, and that this nomination must have been approved by the Minister. The Tribunal also had to consider the applicant's submissions regarding his employment duration and the circumstances leading to the nominator's business closure, and whether any extenuating circumstances could be taken into account.

The Tribunal reasoned that while the applicant had worked for the nominator for two years and acknowledged the nominator's business closure was not the applicant's fault, the legislative requirement for an *approved* nomination was paramount. The evidence indicated that the Department had refused to approve the nomination on 2 July 2018. The Tribunal explained that there were no provisions within the legislation to consider extenuating circumstances or to delay a decision based on potential future applications or nominations, as these could not satisfy the requirements of the visa under review. The Tribunal affirmed the decision not to grant the visa.