Patel (Migration)

This matter concerned an application for review of a decision not to grant Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), under the temporary residence transition stream. The applicants sought review of the decision to refuse their visa applications.

The primary legal issue before the Tribunal was whether the applicants had satisfied the requirements for the grant of a Subclass 186 visa, specifically concerning the need for an approved nomination for the position. The Tribunal was required to determine if the nominator's application for the nominated position had been approved, as this is a prerequisite for the visa grant.

The Tribunal reasoned that the nominator, D’Angelo Engineering Pty Ltd, had sought review of a decision to refuse its nomination application. On 3 June 2020, the Tribunal affirmed that decision, meaning the nominator's application for the nominated position was not approved. This failure to secure an approved nomination meant that the applicants could not satisfy the requirement under regulation 186.223(2) of the Migration Regulations 1994. The Tribunal also noted that if the primary visa criteria were not met, then the other applicants, identified as members of the family unit, would also fail to meet the requirements under regulation 186.311. The applicant's submissions acknowledged the nominator's reluctance to support the process due to delays and requested an extension to find another employer, but this did not overcome the fundamental requirement of an approved nomination.

Consequently, the Tribunal affirmed the decisions not to grant the applicants the Subclass 186 visas.