Rani (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant sought review of a decision to refuse the visa. The Tribunal, constituted by Member Cathrine Burnett-Wake, was required to determine whether the applicant met the relevant criteria for the visa.

The primary legal issue before the Tribunal was whether there was an approved nomination for the position to which the visa application related, as required by clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates that the nomination must have been approved by the Minister, not subsequently withdrawn, and that certain conditions regarding the availability of the position and the timing of the visa application relative to the nomination approval must be met. Additionally, the Tribunal considered whether there was any adverse information known to Immigration concerning the nominator or associated persons.

The Tribunal reasoned that the nomination application for the position in question had been refused by the Department, and a subsequent review application to the Tribunal had been affirmed. As the nomination had not been approved, the applicant could not satisfy the requirements of clause 186.223(2). The applicant had not provided any response or comment to information indicating the refusal of the nomination. Consequently, the Tribunal found that the applicant did not meet the criteria for the Subclass 186 visa in the Temporary Residence Transition stream. Pursuant to clause 186.311, the Tribunal also affirmed the refusal of visas for the applicant's spouse and child, as they did not meet the secondary criteria and there was no evidence they could meet the primary criteria independently. The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.