Senewiratne (Migration)

The Administrative Appeals Tribunal considered the case of Senewiratne, who sought to obtain an Employer Nomination (Permanent) (Class EN) visa, subclass 186, under the Temporary Residence Transition stream. The dispute arose because the applicant's nomination by his employer, Zodiac Group Pty Ltd, was refused and subsequently withdrawn, impacting his eligibility for the visa. The Tribunal was required to determine whether the applicant met the criteria for the subclass 186 visa, specifically clause 186.223, which pertains to approved nominations.

The Tribunal's reasoning focused on the legislative amendments made to the subclass 186 and 187 visa categories since March 2018. These amendments stipulated that a nomination by a new employer would not satisfy clause 186.223 in relation to an application where the applicant was originally nominated by a different employer. As the applicant's original nomination had been refused and its subsequent review application withdrawn, the Tribunal found that the applicant did not meet the requirements of clause 186.223(2) and (4), and therefore did not meet the clause as a whole. Consequently, the Tribunal also affirmed the decisions not to grant visas to the other named applicants, as they relied on the primary applicant's eligibility and did not meet the secondary criteria.

Despite affirming the visa refusal, the Tribunal was satisfied that unique and exceptional circumstances warranted consideration by the Minister under section 351 of the Migration Act 1958. The Tribunal therefore referred the case to the Minister for potential intervention.