PATEL (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically under the temporary residence transition stream. The applicant, Mr. Patel, sought to have the decision to refuse his visa application, and by extension those of his family members, set aside.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 186 visa, particularly clause 186.223 of Schedule 2 to the Migration Regulations, which pertains to the nomination of a position. This clause requires, among other things, that the nomination has been approved and not subsequently withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval. The Tribunal also considered whether the secondary applicants, Mrs. Patel and Ms. Patel, met the criteria as members of the family unit of the primary applicant, as stipulated in clause 186.311.

The Tribunal found that there was no evidence before it to establish that the applicant's visa application was supported by an approved and unwithdrawn nomination. While the applicant presented evidence regarding his daughter's improved health and educational prospects in Australia, the Tribunal noted that it had no sympathy for the applicant's circumstances could not override the failure to meet essential visa criteria. Consequently, the Tribunal concluded that the applicant did not satisfy clause 186.223(2) as the nomination application was not approved. As the primary applicant failed to meet the essential criteria, the secondary applicants also failed to satisfy clause 186.311, as they could not be members of the family unit of a primary applicant who held or was granted a Subclass 186 visa.

The Tribunal affirmed the decision under review, finding that the applicant had not met the requirements for the grant of a Subclass 186 visa in the Temporary Residence Transition stream. As a result, the visa applications for all named applicants were refused.