SOPONRATANAPOKIN (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The primary applicant, Mr. Soponratanapokin, was nominated by a company for the position of Chef. The Department had refused the company's nomination application, and no review application was lodged by the company in relation to this refusal.

The Tribunal was required to determine whether the applicants had satisfied the criteria for the Subclass 186 visa, specifically concerning the nomination of the position. Key legal issues included whether the visa application was validly lodged in the absence of an approved nomination and whether the scheme's "once-off" nature, requiring a visa application to be considered against a specific employer nomination, had been met.

The Tribunal reasoned that a fundamental requirement for a valid Subclass 186 visa application under clause 186.223 of Schedule 2 to the Migration Regulations 1994 is that the position must be the subject of an approved nomination that has not been withdrawn. The applicants had provided a transaction reference number for a nomination that had been refused by the Department, and no review application had been lodged by the company. The Tribunal noted that the applicants had failed to respond to requests for comment on this information. The Tribunal concluded that, as the nomination was refused and not reviewed, the essential requirement of an approved nomination was not met, rendering the visa application invalid.

Consequently, the Tribunal affirmed the decision not to grant the visa to the first applicant. The Tribunal also stated that it had no jurisdiction in relation to the second and third named applicants.