RASOOL (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The primary applicant sought review of a decision not to grant the visa, with a secondary applicant also named. The core of the dispute revolved around whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations.

The Tribunal was required to determine if the applicant had satisfied the criteria for a Subclass 186 visa, particularly clause 186.223, which mandates that the position be the subject of an approved nomination that identifies the visa applicant. This includes requirements that the nomination has been approved, not withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval. The Tribunal also had to consider its jurisdiction in relation to the second named applicant.

The Tribunal reasoned that a fundamental requirement for the visa grant was an approved nomination. Despite the applicant's assertion of having worked in the nominated position, the Tribunal found no evidence that the nomination application had been approved. The Tribunal clarified that it could not revisit the Department's decision regarding the nomination itself, but was bound to apply the legislation as it stood. As the applicant failed to demonstrate that the nomination was approved, they did not meet the essential criterion under cl.186.223(2). Consequently, the Tribunal affirmed the decision not to grant the visa to the primary applicant and noted it lacked jurisdiction in relation to the second named applicant.