Rodbaver (Migration)

The Administrative Appeals Tribunal considered the case of Rodbaver, an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The dispute centred on the refusal of the applicant's nomination by the Department of Home Affairs.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the Subclass 186 visa, specifically clause 186.223, which requires an approved nomination. The Tribunal also had to consider whether the applicant had provided sufficient information to demonstrate that the nomination had been approved and not subsequently withdrawn, and whether a review application lodged by the nominating employer was valid.

The Tribunal reasoned that clause 186.223(2) mandates that the nomination must have been approved by the Minister. The evidence showed that the nomination lodged by the Barrett Family Trust was refused on 30 November 2017, and a subsequent review application by the employer was found to be out of time and therefore outside the Tribunal's jurisdiction. The Tribunal noted that the applicant had been given opportunities to provide information and comment on this lack of an approved nomination, including an invitation to a hearing. As the fundamental requirement of an approved nomination had not been met, the Tribunal concluded that the applicant had not satisfied the criteria for the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa.