Sigdel (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a Subclass 186 Employer Nomination (Permanent) visa under the Temporary Residence Transition stream. The applicant had been nominated for the role of Accountant (General) by Last Minute Grab Pty Ltd. The applicant had ceased employment with the nominator in 2019, and there was no current employment agreement or indication that the position remained available. The visa applicants sought to have their visa applications deferred pending the outcome of a separate appeal concerning the refusal of the nomination itself.

The primary legal issue before the Tribunal was whether the nominated position to which the visa application related was the subject of an approved nomination, as required by clause 186.223(2) of Schedule 2 of the Migration Regulations 1994. The Tribunal also considered whether it should adjourn its review process pending the outcome of the appeal against the nomination refusal. Clause 186.223 requires, among other things, that the nomination has been approved and not subsequently withdrawn, and that the position remains available to the applicant.

The Tribunal reasoned that it was not contested that the nominated position had not been approved by the Minister, and therefore, the criterion in clause 186.223(2) was not met. The Tribunal also determined that it should not adjourn its review indefinitely, as the visa applications could not succeed without a successful outcome of the appeal regarding the nomination. Given that the essential requirements for the visa had not been met, the Tribunal concluded that the decision under review should be affirmed.

Consequently, the Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.