Thapaliya (Migration)

This matter concerned an application for Employer Nomination (Permanent) (Class EN) visas by a primary applicant and their family members. The Administrative Appeals Tribunal was required to determine whether the primary applicant was the subject of an approved nomination and whether the secondary applicants met the criteria for the visa as members of the primary applicant's family unit.

The central legal issue before the Tribunal was whether the applicants had satisfied the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates that the Minister must have approved the nomination of a position, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination's approval.

The Tribunal found that the primary applicant had explicitly stated they did not have an approved nomination. Based on this evidence, the Tribunal concluded that the requirements of clause 186.223 were not met. Consequently, as the primary applicant failed to satisfy the criteria for the Subclass 186 visa, the secondary applicants, as members of the family unit, also failed to meet the necessary requirements for the grant of the visa.

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