Prajapati (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the temporary residence transition stream. The applicant sought judicial review of a decision by the Migration Review Tribunal (the Tribunal) which affirmed the refusal of their visa application. The core of the dispute revolved around the approval of a nominated position for the applicant as a gardener.

The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically clause 186.223, which mandates that the nominated position must be the subject of an approved nomination that has not been withdrawn, and that the visa application must be made within six months of the nomination's approval. The Tribunal also had to consider whether there was any adverse information concerning the nominator or associated persons, and whether the nominated position remained available to the applicant.

The Tribunal reasoned that the employer's application to nominate the applicant for the gardener position was refused by the Department on 16 September 2019. Although the employer sought merits review, the Tribunal affirmed the refusal to approve the nomination on 20 February 2023. The Tribunal notified the applicant that this failure to secure an approved nomination was a primary criterion for the visa grant. Despite granting an extension for the applicant to respond, the Tribunal received a request from the applicant's legal representatives to delay the decision pending a judicial review of the nomination refusal. The Tribunal declined this request, stating it was bound to deal with cases expeditiously and efficiently and could not speculate on the outcome of potential judicial appeals.

Consequently, the Tribunal affirmed the decision not to grant the applicants the Employer Nomination (Permanent) (Class EN) visas. The Tribunal found that as the primary applicant did not satisfy the primary criteria, the secondary applicants, who were family members, also failed to satisfy the criteria for a grant of a visa.