SHRESTHA (Migration)

The Administrative Appeals Tribunal affirmed the decision of the Minister to refuse to grant Employer Nomination (Permanent) (Class EN) visas, subclass 186, to the applicants. The applicants sought to rely on the Temporary Residence Transition stream of this visa subclass.

The primary legal issue before the Tribunal was whether the applicants met the criteria for the subclass 186 visa, specifically concerning the approved nomination for the position. The Tribunal considered whether the position was nominated in accordance with the relevant regulations and whether the nomination had been approved and remained valid. A further issue concerned whether the secondary applicant met the definition of a member of the family unit of a primary visa holder.

The Tribunal reasoned that the applicants had not demonstrated that the position was the subject of an approved nomination that met the requirements of subregulation 5.19(3) of the Migration Regulations 1994. It was noted that the previous employer had failed to seek review of a decision relating to the nomination. Furthermore, the Tribunal found that the secondary applicant did not satisfy clause 186.311 of the Regulations as she was not a member of the family unit of a person who held a Subclass 186 visa granted on the basis of satisfying the primary criteria.

Consequently, the Tribunal affirmed the decision not to grant the visas to the applicants.