Sidhu (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, against a decision to refuse the visa. The nominator, Budget Accommodation Perth Pty Ltd, had its application for approval of its nomination refused by a delegate of the Minister for Home Affairs on 5 July 2022. The applicant subsequently requested the Tribunal to refer the case to the Minister for consideration under s 351 of the Migration Act 1958 (Cth) for a more favourable decision in the public interest.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the Subclass 186 visa, specifically clause 186.223, which requires an approved nomination for the position. The Tribunal was also required to determine whether to exercise its discretion to refer the matter to the Minister under s 351.

The Tribunal reasoned that clause 186.223(2) mandates that the Minister must have approved the nomination. As there was no information before the Tribunal indicating that the nomination had been approved, this criterion was not met. Consequently, the Tribunal found that the applicant had failed to satisfy the requirements for the Temporary Residence Transition stream of the Subclass 186 visa. Regarding the request for referral to the Minister, the Tribunal considered the relevant ministerial guidelines but decided not to make such a referral, noting that the applicant could still make a direct request to the Minister.

The Tribunal affirmed the decision not to grant the applicant the visa.