PHUMIPHAK (Migration)

The Administrative Appeals Tribunal (AAT) considered the applications of two individuals for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The dispute arose because the nomination lodged by the employer, NOK FX PTY LTD, for the position of Financial Dealer Nec (ANZSCO 222299) was refused by a delegate of the Minister for Immigration and Border Protection. The applicants sought review of the decision not to grant them the visa.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a Subclass 186 visa in the Temporary Residence Transition stream, specifically clause 186.223. This clause requires, among other things, that the nomination for the position has been approved by the Minister and has not been subsequently withdrawn. A secondary issue concerned the second applicant's eligibility under clause 186.311, which requires the applicant to be a member of the family unit of a primary applicant who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria.

The Tribunal reasoned that clause 186.223(2) mandates that the Minister must have approved the nomination. As the nomination lodged by NOK FX PTY LTD was refused on 1 May 2020, this essential criterion was not met. Consequently, the Tribunal found that clause 186.223 was not satisfied. Furthermore, the Tribunal determined that the second applicant did not meet clause 186.311 as they were not a family unit member of a primary applicant who held a Subclass 186 visa granted on the primary criteria.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.