Rana (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant sought to have a decision refusing the visa grant set aside. The primary issue revolved around whether the applicant had an approved nomination for the position of Hairdresser, ANZSCO 391111.

The Tribunal was required to determine if the applicant met the criteria for the visa, specifically clause 186.223 of Schedule 2 to the Migration Regulations 1994, which mandates an approved nomination for the position. This clause requires, among other things, that the nomination has been approved, not withdrawn, and that the position remains available to the applicant. The Tribunal also considered whether it had afforded the applicant a fair opportunity to respond to adverse information or to provide further evidence.

The Tribunal noted that a previous nomination application by the applicant's prospective employer, Classic Scissors Pty Ltd, for the same position had been affirmed as refused on 30 April 2019. Subsequently, on 9 May 2019, the Tribunal wrote to the applicants, inviting them to comment on this decision and the potential failure to meet the visa criteria if the nomination was not approved. The invitation specified a deadline for response and warned that a decision might be made without further input. The Tribunal considered its obligations regarding adjournments, referencing case law that indicated it was not required to indefinitely defer its decision-making processes. Having received no response from the applicant, the Tribunal concluded that the applicant had not satisfied the criteria for an approved nomination.

Consequently, the Tribunal affirmed the decision under review not to grant the Employer Nomination (Permanent) (Class EN) visa to the primary applicant. As the primary applicant did not satisfy the criteria, the Tribunal also found that the second, third, and fourth named applicants, who were family members, could not meet the criteria for the grant of Subclass 186 visas.