TRAN (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition Stream. The applicant sought review of a decision not to approve the nomination for the position of Vegetable Grower. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the applicants met the criteria for the grant of the visa as set out in Schedule 2 to 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, particularly concerning the approval of the nomination. This clause requires, among other things, that the nomination has been approved, is not withdrawn, and that there is no adverse information known to the Department about the nominator or associated persons, or that such information can be disregarded. The Tribunal also considered whether the position remained available to the applicant and if the visa application was made within six months of the nomination's approval.

The Tribunal noted that the applicant had been identified in the nomination as the relevant Subclass 457 visa holder and that the nominated position was the subject of the required declaration. However, the Tribunal had previously made a decision on 21 June 2018 in a related AAT case to affirm the decision not to approve the nomination under regulation 5.19. The Tribunal informed the applicant that without an approved nomination, the criteria under clause 186.223(2) would not be met, leading to the application's likely failure. The applicant was given an opportunity to comment on this information.

As the Tribunal concluded that the requirements for the Subclass 186 visa in the Temporary Residence Transition stream had not been met due to the lack of an approved nomination, the decision under review was affirmed. Consequently, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to all applicants as members of the same family unit as the primary applicant.