Peter (Migration)

This matter concerned an appeal by an applicant, identified as Peter, against the decision not to grant him an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant had sought ministerial intervention due to compassionate circumstances arising from a health condition following a workplace injury. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination for the position he sought to be granted a visa for. This required the Tribunal to consider the criteria set out in clause 186.223 of the Migration Regulations 1994, which stipulated that the nomination must have been approved, not subsequently withdrawn, and that the position must still be available to the applicant, among other requirements.

The Tribunal's reasoning focused on the fact that the nomination for the position identified in the applicant's visa application had been refused on 19 September 2019, and this refusal decision had not been reviewed. The Tribunal noted that clause 186.223(2) requires the nomination to have been approved. As the nomination was refused, the applicant could not meet this essential criterion for the visa. The Tribunal also indicated that lodging a new nomination application would not satisfy the requirements for the current visa application.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa, finding that he failed to meet the requirement of having an approved nomination. The Tribunal also indicated it would refer the matter to the Department, having considered the applicant's case and relevant ministerial guidelines.