Wilson (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The dispute centred on whether the applicant met the criteria for this visa subclass, specifically concerning an approved nomination for a Floor Finisher position.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates, among other things, that the position to which the visa application relates must be the subject of an approved nomination that has not been subsequently withdrawn, and that the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the nominator, Shorefloors Pty Ltd, had initially sought review of the Department's decision to refuse nomination approval, but subsequently withdrew this application for review. Crucially, there was no evidence before the Tribunal that the application for approval of a nomination in the Temporary Residence Transition stream, identifying the applicant, had ever been approved. The Tribunal had notified the applicant of this deficiency and the potential consequence of affirming the decision under review, but the applicant did not respond. Consequently, the Tribunal was not satisfied that the nomination had been approved, and therefore, clause 186.223(2) was not met.

As the applicant had only sought to satisfy the criteria for the Subclass 186 visa under the Temporary Residence Transition stream, and these requirements had not been met, the Tribunal affirmed the decision not to grant the visa.