SHARMA (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, made by the first applicant, an Indian citizen, and his spouse. The core dispute concerned the refusal to grant the visas, which stemmed from the sponsoring employer's failure to secure an approved nomination for the applicant's position as Fleet Manager. The delegate refused the visas because the Minister had not approved the nomination, a prerequisite under clause 186.223(2) of Schedule 2 to the Regulations.

The Tribunal was required to determine whether the applicant met the criteria for the Subclass 186 visa, specifically whether the Minister had approved the nomination for the nominated position. This involved assessing whether the nomination had been approved, not subsequently withdrawn, and whether the position remained available to the applicant, among other conditions outlined in clause 186.223. The Tribunal also considered the secondary applicant's claim as a member of the family unit, which was contingent on the primary applicant meeting the visa requirements.

The Tribunal reasoned that the primary obstacle to granting the visas was the absence of an approved nomination. It noted that the employer's application for nomination approval had been refused, and a prior attempt to review that refusal by the Tribunal had been dismissed for lack of jurisdiction. Despite the applicant's submissions explaining the employer's difficulties and his desire to find a new sponsor and lodge a fresh nomination, the Tribunal found that there was no current approved nomination before it. Consequently, the applicant could not satisfy clause 186.223(2) of the Regulations.

The Tribunal affirmed the decision not to grant the visas to either applicant. As the primary applicant failed to meet the essential requirement of an approved nomination, the secondary applicant, who applied as a member of the family unit, also could not be granted the visa.