VIROJNAPA (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding the refusal of Employer Nomination (Permanent) (Class EN) visas, Subclass 186, under the Temporary Residence Transition Scheme. The primary applicant sought a visa based on a nomination made by Centro Parking Pty Ltd, which was lodged in 2017. The secondary applicant, Vasana Jaratjassada, made a combined application with the primary applicant.

The Tribunal was required to determine whether the primary applicant satisfied the criteria for the grant of the visa, specifically clause 186.223, which mandates that the position to which the application relates must be the subject of an approved nomination lodged before the visa application was made, and that the nomination has not been withdrawn. Additionally, the Tribunal needed to assess whether the secondary applicant met the criteria for a Subclass 186 visa, including being a member of the family unit of a primary applicant who satisfies the visa grant criteria.

The Tribunal reasoned that the original nomination lodged by Centro Parking Pty Ltd on 24 April 2018 was refused, and a subsequent nomination made on 16 May 2018 could not satisfy the requirements of Schedule 2 of the Migration Regulations. The Tribunal noted that a new nomination, even by the same employer for the same position, cannot be relied upon to meet the criteria for the visa. Furthermore, the primary applicant had been provided with opportunities to submit evidence and had failed to attend the hearing, nor had the nominator sought review of the initial nomination refusal. Consequently, the Tribunal found that the primary applicant did not meet clause 186.223. For the secondary applicant, the Tribunal found no evidence that she was a member of the family unit of a person who met the primary criteria for the visa, thus failing to satisfy clause 186.311.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to either applicant.