Sarawgi (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Sarawgi, who sought to appeal a decision not to grant him and his spouse Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The primary dispute concerned whether the nominated position met the relevant legislative criteria for the visa application.

The central legal issue before the Tribunal was whether the nominated position satisfied the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates that the position must be the subject of an approved nomination application that identifies the visa applicant, and that the nomination must have been approved and not subsequently withdrawn. Further requirements include the absence of adverse information concerning the nominator, the continued availability of the position, and that the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the nomination application made by M.D. Exports and Imports Pty Ltd ATF The M.D.Family Trust had been refused by the Department and this decision was affirmed by the Tribunal. Consequently, as there was no approved nomination, clause 186.223 was not met. The applicant had only sought to satisfy the criteria for the Temporary Residence Transition stream, and having failed to meet this essential requirement, the Tribunal found that the decision under review should be affirmed. Furthermore, pursuant to clause 186.311, the spouse's application was also affirmed as she did not meet the secondary criteria and there was no evidence she could meet the primary criteria independently.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.