Shah (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) Temporary Entrance Transition stream. The applicant sought to have the Department of Home Affairs' decision to refuse the visa grant set aside.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the Subclass 186 visa, particularly concerning the nomination requirements. This involved determining whether the nomination for the position had been approved and had not been subsequently withdrawn, as stipulated by clause 186.223 of the Migration Regulations 1994.

The Tribunal reasoned that clause 186.223 requires, among other things, that the nomination for the position has been approved and has not been withdrawn. The evidence before the Tribunal indicated that the Department of Home Affairs had refused the nomination on 24 January 2018, and the Tribunal itself had affirmed this refusal on 27 July 2020. Consequently, the nomination relied upon by the applicant had not been approved. The Tribunal also noted that it had invited the applicant to respond to this information, but no response was provided. As the applicant had not met this essential criterion for the visa, the Tribunal affirmed the decision under review.