Peiris (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream, for the position of Hairdresser. The applicant sought review of a decision to refuse the visa. The Tribunal was required to determine whether the requirements for the visa, specifically concerning an approved nomination, had been met.

The primary legal issue before the Tribunal was whether there was an approved nomination for the position of Hairdresser, as required by clause 186.233 of the Migration Regulations 1994. This clause mandates that the position must be the subject of an application for approval of a nomination, that the nominating employer must be the prospective employer, that the nomination must have been approved and not subsequently withdrawn, and that the position must still be available to the applicant. The Tribunal also considered whether there was any adverse information known to Immigration concerning the nominator or associated persons, and the timeframe between nomination approval and visa application.

The Tribunal affirmed the decision to refuse the visa because the initial application for approval of the nominated position by The Beauty Studio Company Pty Ltd had been refused, and the company had subsequently withdrawn its application for review of that refusal. The Tribunal noted that the applicants had provided submissions and evidence, including details of their previous Subclass 457 visa and salary payments, arguing that the COVID-19 pandemic had impacted the sponsor's business, rendering the applicant's employment unviable and leading to the withdrawal of the nomination review. However, the Tribunal found that the fundamental requirement of an approved nomination had not been met. Furthermore, the Tribunal affirmed the refusal for the secondary applicants as they were not family members of a Subclass 186 visa holder and did not meet the primary criteria themselves.