Veras Batista (Migration)

This matter concerned an appeal by Veras Batista against a decision to refuse him an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Direct Entry stream. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the delegate's decision.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 186.233 of the Migration Regulations 1994. This clause mandates that for the Direct Entry stream, the position must be the subject of an approved nomination, and that the nomination must have been approved and not subsequently withdrawn. The Tribunal also considered whether the position remained available to the applicant and if the visa application was made within the prescribed timeframe after nomination approval.

The Tribunal reasoned that a critical requirement for the Direct Entry stream of the Subclass 186 visa is that the position must be the subject of an approved nomination. In this case, the nomination application lodged by GE Oil and Gas Australia Pty Ltd was withdrawn on 2 August 2016, as the company no longer intended to employ the applicant. Consequently, the nomination was not approved by the Minister, and the Tribunal found that clause 186.233(3) was not met. Despite the applicant's submissions regarding hardship and alleged deliberate postponement of his application by his employer and migration agent, the Tribunal clarified that it lacked the power to grant a visa unless the legislative criteria were satisfied.

The Tribunal affirmed the delegate's decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.