Patel (Migration)

This matter concerned a review of a decision not to grant an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, in the Temporary Residence Transition stream. The applicant sought to have the decision to refuse their visa affirmed. The Tribunal was required to determine whether the nomination for the position of Systems Administrator, made by Ahmer Arif Ismail, had been approved.

The primary legal issue was whether the applicant met the criteria under clause 186.223 of the Migration Regulations 1994. This clause requires, among other things, that the position to which the application relates is the subject of an approved nomination that identifies the visa applicant, and that the nomination has not been subsequently withdrawn. The Tribunal also considered the requirement that the visa application must be made no more than six months after the nomination was approved.

The Tribunal reasoned that departmental records indicated the nomination relating to the applicant's visa application and the position of Systems Administrator was refused on 24 October 2017. This decision was affirmed by a differently constituted Tribunal on 19 December 2019. The applicant was informed of this adverse information, and it was explained that the absence of an approved nomination would be a reason for affirming the decision to refuse the visa. The Tribunal was satisfied that there was no approved nomination for the position in the applicant's visa application, and therefore, clause 186.223 was not met. Consequently, the decision to refuse the applicant's visa was affirmed.

As the primary applicant's visa refusal was affirmed, the Tribunal also affirmed the decision to refuse the secondary applicant's visa, as the secondary applicant could not meet the criteria under clause 186.311, which requires them to be a member of the family unit of a person who holds a Subclass 186 visa. The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.