Tjhu (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically under the Temporary Residence Transition stream. The applicant sought to have the decision of the Department of Home Affairs, which refused the visa grant, reviewed by the Tribunal. The nominator for the position of Hairdresser was GOURMET DINNER SERVICE PTY LTD.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Subclass 186 visa, particularly concerning the nomination requirements as stipulated in clause 186.223 of the Migration Regulations 1994. This clause requires, among other things, that the nomination has been approved by the Minister and has not been subsequently withdrawn.

The Tribunal reasoned that a critical requirement for the grant of a Subclass 186 visa is an approved nomination. The evidence before the Tribunal indicated that the Department had refused the nomination on 3 January 2018, and the nominator subsequently withdrew their application for review of this refusal on 9 July 2020. Consequently, the Department's decision refusing the nomination stood, meaning the relevant nomination had not been approved. As this fundamental criterion was not met, the Tribunal found that the applicant did not satisfy the requirements for the visa.

Accordingly, the Tribunal affirmed the decision of the Department of Home Affairs not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.