Sekhon (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the refusal of a Subclass 186 Employer Nomination Scheme visa application. The applicant, Mr. Sekhon, sought to satisfy the criteria for the Temporary Residence Transition stream, based on a nomination by WJ Trading Co Pty Ltd for a position as a cook. The delegate had refused the nomination application, and this decision was affirmed by the Tribunal on review.

The primary legal issue before the Tribunal was whether the nomination in relation to the applicant had been approved, as required by clause 186.223 of the Migration Regulations. This clause necessitates that the nominated position be the subject of an approved nomination application that identifies the visa applicant and that the position remains available to the applicant. The applicant had also raised issues of hardship and sought a delay in the decision due to border restrictions and his efforts to secure another visa nomination.

The Tribunal reasoned that the applicant had not met the essential criteria for the Temporary Residence Transition stream because the nomination itself had not been approved. While the applicant provided explanations for discrepancies in his PAYG summaries and presented bank statements, and informed the Tribunal that the nominating business had been sold and the position was no longer available, these circumstances did not alter the fundamental requirement that the nomination must have been approved. The Tribunal noted that there was no provision within the regulations for extenuating circumstances in this regard.

Consequently, the Tribunal affirmed the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.