Saeed (Migration)

This matter concerned an application for review by Mr Saeed of a decision to refuse his Subclass 186 (Employer Nomination Scheme) visa, specifically under the Temporary Residence Transition stream. The applicant's employer had lodged a nomination for the position of Cook (ANZSCO 351411), which was a prerequisite for Mr Saeed's visa application. The Administrative Appeals Tribunal was tasked with determining whether the criteria for this visa subclass had been met.

The primary legal issue before the Tribunal was whether the applicant's employer's nomination for the Cook position had been approved and remained valid. This involved an assessment of clause 186.223 of Schedule 2 to the Migration Regulations 1994, which requires, among other things, that a nomination be approved and not subsequently withdrawn, that the position remains available, and that the visa application is lodged within six months of the nomination's approval. The Tribunal also considered whether the circumstances warranted a referral to the Minister for potential intervention under section 351 of the Migration Act 1958.

The Tribunal found that the applicant's employer's nomination application had been refused by the Department and that the employer had subsequently withdrawn its application for review before the Tribunal, having gone into liquidation. Consequently, the nomination had not been approved. As the approval of the nomination is a mandatory criterion for the Subclass 186 visa under the Temporary Residence Transition stream, the Tribunal concluded that the applicant could not meet the requirements for this visa. The Tribunal affirmed the decision under review to refuse Mr Saeed's visa application.

Despite affirming the refusal, the Tribunal decided to refer the matter to the Minister under section 351 of the Migration Act 1958. This referral was made to allow the Minister to consider whether to substitute a more favourable decision in the public interest, acknowledging the potential for unique or exceptional circumstances, such as the unanticipated impact of COVID-19 on the applicant's ability to travel offshore.