TAO (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme – direct entry stream), made by a primary applicant and a secondary applicant who was a member of the primary applicant's family unit. The dispute arose from the refusal of the nomination by the sponsoring company, Hoadley Budge Olphert Edwards Madigan Torzillo Briggs (NSW) Pty Ltd. The Administrative Appeals Tribunal (AAT) was required to determine whether the Minister had approved the primary applicant's nomination for the visa.

The central legal issue before the Tribunal was whether the primary applicant had satisfied the requirements of clause 186.233 of the Migration Regulations 1994, specifically concerning the approval of the nomination. This clause requires that the position be the subject of an approved nomination application and that the nominator be the entity that will employ the applicant. The Tribunal also considered the consequence for the secondary applicant's application if the primary applicant's claim failed.

The Tribunal reasoned that the Department had refused the nomination on 23 July 2019, and a prior AAT decision on 24 March 2020 had confirmed the Tribunal's lack of jurisdiction to review that nomination refusal, meaning the refusal stood. Furthermore, the Tribunal noted that the nominator, Hoadley Budge Olphert Edwards Madigan Torzillo Briggs (NSW) Pty Ltd, had been deregistered on 4 January 2020 and its registration had not been reinstated. Consequently, the Tribunal found that the Minister had not approved the nomination as required by cl.186.233(3). As this essential criterion was not met, the Tribunal was not required to consider other criteria for the visa.

Given that the primary applicant had failed to satisfy the necessary criteria for the Subclass 186 visa in the Direct Entry stream, and the secondary applicant's application was dependent on the primary applicant's success, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to either applicant.