Sharma (Migration)

This matter concerned an appeal by the applicant, Ms. Sharma, against a decision of the Migration Review Tribunal (MRT) which affirmed the refusal to grant her an Employer Nomination (Permanent) (Class EN) visa, subclass 186 (Employer Nomination Scheme) under the Direct Entry Stream. The applicant had previously held a subclass 457 visa, but her sponsor was barred from sponsoring, leading to the cancellation of that visa and a subsequent application for the subclass 186 visa with a new employer, Simgae Pty Ltd.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a subclass 186 visa, specifically whether she had an approved nomination for a position that satisfied the requirements of clause 186.233 of the Migration Regulations 1994. This clause mandates that for the Direct Entry stream, the nominated position must have been approved, the nominator must be the intended employer, and the visa application must be made within six months of the nomination approval, among other conditions.

The Tribunal found that there was no evidence before it that the applicant met the primary criteria for the grant of the visa. Crucially, the Tribunal noted that the applicant was not the subject of an approved nomination as required by clause 186.233. Furthermore, the Tribunal determined that the secondary applicants, who were family members, also failed to meet the criteria as they were dependent on the primary applicant satisfying the main requirements. Consequently, the Tribunal affirmed the decision not to grant the visa. The Tribunal also considered a request to refer the case to the Minister for discretionary intervention under section 351 of the Migration Act 1958 but decided against it, noting that the applicant could still make a direct request to the Minister and had other visa applications pending.