Preka (Migration)

The Administrative Appeals Tribunal considered the case of Mr Pjerin Preka, who sought review of a decision by the Department of Immigration and Border Protection to refuse his Subclass 186 Employer Nomination (Permanent) (Class EN) visa. The refusal was based on the employer's nomination for the position of Hairdresser (ANZSCO 391111) not being approved. The sponsoring employer, The Trustee for the Michele Casalbore Family Trust, had applied for approval of the nomination, which was subsequently refused by the Department.

The primary legal issue before the Tribunal was whether the nomination for the position of Hairdresser had been approved, as required by clause 186.233 of Schedule 2 of the Migration Regulations. This clause mandates that the nomination must be approved, not subsequently withdrawn, and that certain conditions regarding adverse information, position availability, and the timing of the visa application relative to the nomination approval must be met. The Tribunal also considered whether the applicant had satisfied the criteria for the Temporary Residence Transition stream of the Subclass 186 visa.

The Tribunal reasoned that the Department had refused the employer's nomination application, and this refusal had not been overturned. Consequently, the essential criterion under clause 186.233(3) of the Regulations, requiring the Minister to have approved the nomination, could not be satisfied. The Tribunal had notified the applicant of this deficiency and invited a response, but no response was provided. As the applicant had not demonstrated that the nomination was approved, and had only sought to satisfy the criteria for the Temporary Residence Transition stream, the Tribunal concluded that the applicant could not meet the requirements for the visa.

Accordingly, the Tribunal affirmed the Department's decision not to grant Mr Preka's Subclass 186 visa.