SHAH (Migration)

This matter concerned an application for an Employer Nomination (Permanent) visa (Subclass 186) in the Temporary Residence Transition stream. The applicant sought to have the decision to refuse their visa application reviewed by the Tribunal. The applicant's sponsor, Esoft Solutions Pty Ltd, had previously applied for approval of a nomination in relation to the applicant, which was refused by the Department and subsequently affirmed by the Tribunal. No appeal was lodged by the nominator against this decision.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination, as required by clause 186.223 of the Migration Regulations. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination that identifies the visa applicant, and that the nomination must not have been subsequently withdrawn. The Tribunal was also required to consider whether it was appropriate to delay a decision on the current visa application pending a potential new nomination application by the sponsor or another employer.

The Tribunal reasoned that the nomination application by Esoft Solutions Pty Ltd had been refused and that decision had been affirmed by the Tribunal, with no further appeal. Consequently, at the time of the decision, there was no approved nomination in place that identified the applicant. The Tribunal found that the applicant did not satisfy the criteria under cl.186.223(2) because the nomination had been refused and finalised. The Tribunal also determined that it was not appropriate to postpone the decision to await the outcome of any new nomination application, given the speculative nature of such an application and the likely delays in processing.

Accordingly, the Tribunal affirmed the decision not to grant the applicant an Employer Nomination (Permanent) visa. As the second applicant's claim was based on being a member of the family unit of the primary applicant, and the primary applicant did not meet the criteria, her application was also affirmed.