Yew (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant sought review before the Tribunal of a decision to refuse her visa application. The Tribunal, constituted by Jennifer Cripps Watts, was required to determine whether the applicant had an approved nomination for the visa.

The central legal issue before the Tribunal was whether the applicant met the mandatory requirement of having an approved nomination for the Subclass 186 visa, as stipulated by clause 186.223 of the relevant regulations. This clause requires that the nominated position be the subject of an approved nomination that identifies the visa applicant and has not been subsequently withdrawn. The Tribunal also considered whether the position nominated was the same as that which was the subject of the declaration made as part of the current visa application.

The Tribunal reasoned that the requirement for an approved nomination was a mandatory criterion for the grant of the Subclass 186 visa, and that it had no discretion to waive this requirement. While acknowledging the applicant's evidence regarding a dispute with an HR manager at her previous employment and her partner visa application, the Tribunal found these matters to be irrelevant to the determination of whether she possessed an approved nomination for the Subclass 186 visa. The Tribunal noted that the applicant had been informed that without an approved nomination identifying her in the relevant occupation, she could not satisfy the criteria for the visa.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not met the mandatory requirement of having an approved nomination. The decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa was therefore upheld.