Selimi (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Selimi and his family, who sought to obtain Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The primary dispute concerned the refusal of their nomination, which the Tribunal found did not meet the requirements of clause 186.223. The applicants also requested that the Tribunal refer their case to the Minister for intervention under section 351 of the Migration Act 1958 (Cth).

The legal issues before the Tribunal were whether the applicants met the criteria for a Subclass 186 visa in the Temporary Residence Transition stream, and whether there were unique or exceptional circumstances warranting a referral to the Minister for discretionary intervention. Specifically, the Tribunal had to determine if the nomination had been approved and if the position remained available to the applicant, as required by clause 186.223.

The Tribunal reasoned that the nomination had not been approved at the time of its decision, meaning the applicants failed to satisfy clause 186.223. Consequently, the primary applicant and the secondary applicants, who did not meet the family unit criteria or primary visa criteria in their own right, did not qualify for the visa. Despite affirming the decision not to grant the visas, the Tribunal found that the matter did exhibit unique or exceptional circumstances, including incorrect advice received from a former migration agent, the applicant's essential role in the agricultural sector facing skills shortages exacerbated by the COVID-19 pandemic, and compelling compassionate circumstances relating to Australian-citizen family members.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants. However, it concluded that the matter warranted referral to the Minister for consideration under section 351 of the Act.