Tsukahara (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), by Mr. Tsukahara, with a second applicant applying as a member of his family unit. The core dispute revolved around whether the applicant had an approved nomination that had not been withdrawn, a prerequisite for the visa. The Administrative Appeals Tribunal (AAT) was required to determine if the applicant met the criteria for the visa, specifically clause 186.223(2) of the Migration Regulations 1994, which requires an approved nomination at the time of the Tribunal's decision.

The applicant sought an indefinite adjournment of the Tribunal's decision pending an appeal to the Federal Circuit Court concerning the business nomination. However, the Tribunal noted that the details of this appeal were unknown to it, and it was not in a position to indefinitely delay its decision without knowing the status or progress of the external appeal. The Tribunal had previously informed the applicant of information suggesting he did not have an approved business nomination, as the nomination made by Naiban Australia Pty Ltd had been refused by the Department and affirmed by the Tribunal. The applicant subsequently indicated he would not attend a scheduled hearing, requesting the Tribunal proceed to a decision.

The Tribunal reasoned that as the applicant did not have an approved nomination at the time of the Tribunal's decision, he failed to meet a crucial requirement of the visa. The Tribunal applied the principle that if an applicant does not meet any of the subclauses of clause 186.223, the decision to refuse the visa must be affirmed. Given that the primary applicant did not meet the visa requirements, the Tribunal also affirmed the decision in respect of the second applicant, who applied as a family member.

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