Saif (Migration)

This matter concerned an appeal by Mr Saif and other applicants against the Department's decision to refuse their applications for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether Mr Saif, as the primary applicant, satisfied the criteria set out in clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause requires, among other things, that the position to which the application relates must be the subject of an approved nomination that has not been withdrawn, that there is no adverse information known to Immigration concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the Company's nomination was refused by the Department on 6 August 2019, and although the Company sought review of this refusal, the Tribunal lacked jurisdiction to review the nomination refusal because the Company had been de-registered by ASIC on 12 August 2021, with no evidence of reinstatement. Consequently, there was no evidence before the Tribunal that Mr Saif's Subclass 186 visa application was supported by an approved nomination. As this essential criterion under cl 186.223 was not met, the Tribunal concluded that Mr Saif did not satisfy the primary criteria for the visa.

Given that the other applicants' eligibility was contingent on Mr Saif meeting the primary criteria as a member of his family unit, their applications also failed. Accordingly, the Tribunal affirmed the Department's decision to refuse the visa applications for all applicants.