TRAN (Migration)

This matter concerned an appeal by the applicants, identified as TRAN and secondary applicants, against a decision to affirm the refusal of their Subclass 186 (Employer Nomination Scheme) visa applications. The core of the dispute revolved around the approval of a nominated position by the employer, H&L Hydroponics Pty Ltd, for the primary applicant, who held a Subclass 457 visa. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the applicants met the criteria for the visa grant under Schedule 2 of the *Migration Regulations 1994*.

The primary legal issue before the Tribunal was whether the nominated position met the requirements of clause 186.223 of the *Migration Regulations 1994*, specifically concerning the Temporary Residence Transition stream. This involved assessing whether the nomination had been approved, if there was any adverse information concerning the nominator, if the position remained available, and if the visa application was lodged within the prescribed timeframe after nomination approval. The Tribunal also considered the implications of a prior Tribunal decision in a related AAT case that had affirmed a refusal of the nomination itself.

The Tribunal examined the evidence and found that the nominated position was indeed the subject of an application for approval under regulation 5.19(3) and that the applicant had been identified as the relevant Subclass 457 visa holder. However, the Tribunal noted that a separate decision in a related AAT case had affirmed the refusal of the nomination under regulation 5.19. The Tribunal informed the applicant that without an approved nomination, she would not satisfy the necessary criteria under clause 186.223(2) for the visa grant, which would lead to the affirmation of the decision under review for all applicants. The applicant was given an opportunity to comment on this information.