PARK (Migration)

This matter concerned an application for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The applicants sought review of a decision not to grant them these visas. The Tribunal, constituted by Wan Shum, was required to determine whether the applicants met the relevant criteria for this visa subclass.

The primary legal issue before the Tribunal was whether the position to which the visa application related was the subject of an approved nomination under the Temporary Residence Transition stream. This involved assessing whether the nomination identified the applicant, corresponded to the declared position, had been approved and not withdrawn, and whether there was any adverse information concerning the nominator or associated persons. Additionally, the Tribunal had to consider if the position remained available and if the visa application was lodged within six months of the nomination's approval.

The Tribunal reasoned that a critical requirement for the Subclass 186 visa in the Temporary Residence Transition stream, as stipulated by cl.186.223(2), was the Minister's approval of the nomination. In this case, the nomination application made by JW Maintenance Pty Ltd was refused by the department on 13 November 2017. The Tribunal subsequently dismissed the application for review of this refusal when the nominator failed to appear at a scheduled hearing, and on 9 April 2019, confirmed this dismissal, effectively affirming the decision not to approve the nomination. As the nomination had not been approved, the Tribunal concluded that cl.186.223(2) and, consequently, cl.186.223 were not met.

Given that the applicants had only sought to satisfy the criteria for the Temporary Residence Transition stream and had not made claims in respect of other visa streams, and because the essential requirements for this stream had not been met, the Tribunal affirmed the decision under review. The Tribunal therefore affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.