Saoud (Migration)

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm a decision refusing to grant Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The applicant sought a visa as a Solid Plasterer, but the core of the dispute revolved around whether there was an approved nomination for the position.

The legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 186.223 of the Migration Regulations 1994, which mandates that the position to which the visa application relates must be the subject of an approved nomination. This clause requires, among other things, that the nomination has been approved, has not been withdrawn, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the nomination lodged by Exquisite Touch Painting Pty Ltd for the applicant's position was initially refused by a delegate of the Minister. Although the nominator applied for a review of this decision, the Tribunal affirmed the refusal. Consequently, as the nomination itself had not been approved, the Tribunal found that clause 186.223 was not met. The Tribunal also affirmed the refusal of visas for secondary applicants, as they did not meet the criteria for family members of a primary visa holder and had not met the primary criteria in their own right. The Tribunal therefore affirmed the decision not to grant the visas.