Simaranjit Kaur (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically within the Temporary Residence Transition stream. The applicant, Simaranjit Kaur, sought review of a decision that affirmed the refusal of her visa application. The core of the dispute revolved around the requirement for an approved employer nomination to support the visa application.

The Tribunal was required to determine whether the applicant met the criteria under clause 186.223(2) of the Migration Regulations. This clause mandates that the Minister must have approved the employer's nomination for the position, and that this nomination must have been lodged in relation to the Temporary Residence Transition stream, identifying the visa applicant. Furthermore, the nomination must not have been withdrawn and there must be no adverse information known to the Department concerning the nominator or associated persons.

The Tribunal reasoned that the applicant's employer, Om Mahalaxmii Pty Ltd, had initially lodged an employer nomination which was subsequently refused by a delegate of the Minister. While an application for review of this refusal was lodged with the Tribunal, Om Mahalaxmii Pty Ltd later withdrew that review application. Consequently, there was no longer an application to review, meaning the employer nomination was not approved. The Tribunal noted that it had invited the applicant to respond to this information, and while the applicant provided personal details and requested more time to find a new nomination due to her employer's bankruptcy and her own medical condition, these circumstances did not alter the fundamental requirement for an approved nomination. The Tribunal concluded that as the employer nomination had not been approved, a mandatory criterion for the visa had not been met, and therefore, the Tribunal lacked the discretion to approve the visa application.

Accordingly, the Tribunal affirmed the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, in the Temporary Residence Transition stream, as the necessary requirements had not been satisfied.