Soni (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically under the Temporary Residence Transition stream. The applicant sought review of a decision to refuse her visa application, which was based on a nomination lodged by Blue Gulabi Pty Ltd. The core of the dispute revolved around whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied clause 186.223(2), which mandates that the position to which the visa application relates must be the subject of an approved nomination that identifies the visa applicant. This criterion further stipulates that the nomination must have been approved and not subsequently withdrawn, that there must be no adverse information known to the Department about the nominator or associated persons (or such information must be disregarded), that the position must remain available to the applicant, and that the visa application must be made within six months of the nomination's approval.

The Tribunal's reasoning focused on the fact that the nominator's application for approval of the nomination was refused by the Department on 17 August 2017, and this refusal was subsequently affirmed by the Tribunal on 27 November 2018. As a consequence of the nomination not being approved, the Tribunal concluded that the applicant could not satisfy the requirement under clause 186.223(2). The applicant was provided with an opportunity to comment on the proposed decision to affirm the refusal, but failed to do so within the prescribed period.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, finding that she did not meet the essential criteria for the visa.