respondent. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas (28 November 2018).
Key principles
Where a visa applicant relies on clause 186.223(2) of Schedule 2 to the Migration Regulations, the Minister must have approved the corresponding nomination; if the nomination...
An applicant cannot be treated as meeting the Temporary Residence Transition stream primary criteria by relying on a nomination that was refused, nor by pending or subsequent...
Issues before the court
Whether the applicant satisfied cl.186.223(2) of Schedule 2 to the Migration Regulations, namely that the Minister had approved the relevant...
Whether the applicant could satisfy the subclass 186 criteria under any alternative stream (Direct Entry or Agreement).
Whether any dependent applicant satisfied the primary criteria or whether a family unit member held a subclass 186 visa to satisfy cl.186.311.
Cited legislation
No linked legislation citations have been extracted yet.
Plain English Summary
The applicants applied for permanent employer-sponsored visas (subclass 186, Temporary Residence Transition stream). The employer's nomination for the position was refused by a delegate on 1 November 2016. Clause 186.223(2) requires that the Minister has approved that nomination. Because there was no nomination approval, the statutory condition for the visa was not satisfied. The Tribunal considered alternative streams but found those criteria were also not met. The Tribunal therefore affirmed the delegate's refusal of the visas.
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Deep Dive
1,733 words · generated 19/07/2026
What happened
The applicants, Mr Jay Raj Ghale (primary) and Ms Jasmin Lama (dependent), applied for Employer Nomination (Permanent) visas (Class EN, Subclass 186) on 7 August 2015 [2]. The primary applicant sought the visa in the Temporary Residence Transition stream for the nominated occupation Program or Project Administrator (ANZSCO: 511112) [4].
The central statutory requirement for that stream is in cl.186.223 of Schedule 2 to the Migration Regulations. In short, that clause requires the position to be a nominated position identifying the visa applicant, and, crucially, that 'The Minister has approved the nomination' (cl.186.223(2)). The clause also requires the nomination not to have been withdrawn, that there be no adverse information about the nominator or associated persons (or that such information be reasonably disregarded), that the position remain available, and that the visa application be made within six months of nomination approval; the full text is set out in Attachment A to the Tribunal decision (Attachment A reproduces cl.186.223) [Attachment A].
A AND A (SYDNEY) PTY LTD was the nominating employer. The nomination lodged by that employer was refused by a delegate of the Minister on 1 November 2016 [Nomination para 3]. Following that refusal, the applicants were invited to comment on 25 November 2016; they responded on 23 December 2016 and lodged a merits review application in relation to the nomination decision (Tribunal electronic lodgement form and acknowledgement were provided) [Nomination para 3].
The delegate proceeded to consider the visa application. Because the nomination approval required by cl.186.223(2) was absent, the delegate found the Temporary Residence Transition stream requirements were not met and refused the visa. The delegate also considered whether the applicant could qualify under the Direct Entry stream (cl.186.233) or the Agreement stream (cl.186.242): the Direct Entry assessment failed because the correlating nomination only sought to meet r.5.19(3) not the r.5.19(2)/(4) requirements applicable to Direct Entry; the Agreement stream failed because the position had not been nominated under a labour agreement [4]–[5].
The applicants sought Tribunal review of the visa refusal. The Tribunal convened a hearing on 7 November 2018 at which the first named applicant gave evidence and Mr Anish Maharaj (the business nominator) gave oral evidence [6]. The Tribunal noted it had earlier affirmed the Department's decision not to approve the nomination (noted in a s.359A letter) and, on 28 November 2018, the Tribunal affirmed the delegate's decision to refuse the subclass 186 visas [s.359A letter; Decision].
The essential factual and legal pivot of the entire matter was that the nomination approval required by cl.186.223(2) did not exist because the nomination had been refused; merits review of that nomination did not alter the position that, at the time of decision, the requirement was unmet [5]; Attachment A.
Why the court decided this way
Statutory structure and mandatory wording: Clause 186.223(2) uses mandatory language, 'The Minister has approved the nomination', as a precondition to the grant of a subclass 186 visa in the Temporary Residence Transition stream. The Tribunal accepted that statutory text and applied it strictly: where the nomination had been refused, the statutory precondition was not satisfied and the delegate (and consequently the Tribunal on review) could not lawfully grant the visa [cl.186.223; see quote at para 5].
Factual determination about nomination status: The Tribunal relied on the uncontroverted administrative fact that the nomination lodged by the employer was refused on 1 November 2016, and that, at the time of the visa decision, no Ministerial approval had been given. The applicants' response to the refusal and their lodging of a merits review application did not equate to an approval being in place; the statutory condition required an actual approval [Nomination para 3; s.359A letter].
Attempted alternative routes did not meet their own statutory tests: The delegate had examined alternative visa streams. The Direct Entry stream required an approval under r.5.19(4)(h)(1) or r.5.19(2) as at 1 July 2012; the application before the delegate only sought to meet r.5.19(3). The Agreement stream required a labour agreement nomination, which was absent. The Tribunal accepted the delegate's analysis on these points and concluded no alternative pathway to grant the visa was available [4]–[5].
The Tribunal considered the applicants' personal circumstances (length of residence in Australia, family considerations and impending childbirth), and the applicant's stated intention to pursue judicial review. However, the Tribunal treated those matters as collateral to the statutory tests and insufficient to override the mandatory regulatory precondition [s.359A response; Decision].
Before and after state of the law
Before this decision:
The statutory framework for subclass 186 vis-a-vis the Temporary Residence Transition stream already required a nominated position and an approved nomination as conditions precedent. That framework has been applied strictly by decision-makers and tribunals. The case does not change the law; rather, it applies the established regulatory condition.
After this decision:
The Tribunal's decision re-affirms the strict operation of cl.186.223(2): an applicant whose visa depends on a nominated position cannot obtain a grant in the Temporary Residence Transition stream if the corresponding nomination has been refused and not approved at the time of decision.
The decision also reinforces that merits review of a nomination does not, in itself, satisfy the approval precondition; a live approval is required before the visa grant can follow under that stream.
Practical effect:
Sponsors, applicants, and advisers must ensure that a valid nomination approval exists before expecting grant of a subclass 186 visa in the Temporary Residence Transition stream. Merits review of a refused nomination may be pursued, but it does not produce the statutory approval needed unless the nomination is subsequently approved.
Key passages with plain-English translation
Key passage: "The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) ... because the related nomination approval was refused." [5]
Plain English: The visa was refused because a necessary condition, that the Minister had approved the employer's nomination, did not exist; the employer's nomination had already been turned down.
Key passage: "Clause 186.223 ... essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination ... that identifies the visa applicant." [Nomination para 1]
Plain English: To claim the Temporary Residence Transition route, the visa applicant must be named in a nomination that has actually been approved by the Minister for that exact job.
Key passage: "On 1 November 2016, the nomination application ... was refused by a delegate of the Minister." [Nomination para 3]
Plain English: The nominating company's request to have the job position and the applicant accepted by the Department was rejected on that date.
Key passage: "After considering all the evidence, the Tribunal is also not satisfied that cl.186.223 is otherwise met." [Consideration para 2]
Plain English: Even looking at all the documents and hearing, the Tribunal did not find any other factual or legal basis to conclude the applicant met the clause's requirements.
Final disposition: "The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas." [Decision]
Plain English: The Tribunal agrees with the original refusal; the applicants will not receive the visas.
What fact patterns trigger this precedent
Any subclass 186 Temporary Residence Transition stream application where:
the employer-nominated position was refused approval by the Department; and
there is no subsequent Ministerial approval prior to the visa decision; and
the applicant attempts to rely on merits review proceedings (pending or otherwise) to cure the absence of approval.
Situations where the nomination sought to meet r.5.19(3) requirements but not the r.5.19(2) or r.5.19(4) requirements necessary to fall within the Direct Entry stream.
Cases where a dependent applicant attempts to rely on family-member eligibility under cl.186.311 but the primary applicant has not satisfied primary criteria.
This decision is relevant to sponsors and applicants planning their immigration pathway: ensure nominations are properly made and approved and ensure that the nomination matches the stream-specific regulatory requirements before lodging or relying on a subclass 186 visa application.
How later courts have treated it
This decision is an AAT merits decision applying the Migration Regulations to the facts. It reasserts established statutory tests rather than creating new legal principle. It will be cited in later tribunal or administrative decisions that confront similar factual circumstances, namely, nomination refusal followed by visa application relying on that nomination. Because this is a tribunal decision, its precedential weight is persuasive within the AAT and can inform departmental decision-making and practitioners on the strict application of cl.186.223(2).
The decision shows the Tribunal will not conflate a lodged merits review or other procedural steps with the substantive statutory requirement of ministerial nomination approval at the time of decision.
Still-open questions
Timing and effect of merits review outcomes: If a nomination is refused, and a merits review application is lodged, what effect does a subsequent Tribunal or review body decision in favour of the nomination have on a visa application made in the interim? This decision reiterates that visa grant requires approval to be in place; however, practical questions remain about sequencing: if the Tribunal later allows the nomination and that decision becomes final prior to a fresh merits review of the visa application, can the visa be granted? The present decision does not explore post-decision approval effects because the nomination remained refused at the relevant decision time.
Discretionary or compassionate grounds: The Tribunal acknowledged personal circumstances (length of residence, family), but treated them as irrelevant to meeting the statutory condition. The extent to which compassionate or discretionary grounds (outside the statutory stream criteria) can influence the decision-maker in similar circumstances remains a matter of statutory powers and ministerial discretion, not resolved here.
Interaction with departmental processing and timing: The case underlines the practical need to align nomination approvals and visa lodgement. Questions about whether applicants can be protected where processing delays prevent nomination approval within the six-month window in cl.186.223(5) remain fact-specific and unresolved in this decision.
Conclusion: Ghale (Migration) [2018] AATA 5589 is a clear, application-focused decision affirming that the statutory precondition of nomination approval (cl.186.223(2)) is mandatory for subclass 186 Temporary Residence Transition stream visas. It emphasises strict compliance with nomination requirements and demonstrates the Tribunal will not substitute equitable considerations for the clear regulatory tests.
Judgment (22 paragraphs)
[1]
Ghale (Migration) [2018] AATA 5589 (28 November 2018)
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 January 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate's decision was lodged with the Tribunal.
The applicants applied for the visas on 7 August 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Program or Project Administrator (ANZSCO: 511112).
The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the related nomination approval was refused.
The applicants appeared before the Tribunal on 7 November 2018; though only the first named applicant provided evidence and presented arguments. The Tribunal also received oral evidence from Mr Anish MAHARAJ (the business nominator).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
[8]
The issue in the present case is whether the requirement in cl.186.223(2) were met.
[9]
Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
In addition, this criterion also requires that:
the nomination has been approved and has not been subsequently withdrawn
there is no 'adverse information' known to Immigration about the person who made the nomination or a person 'associated with' that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information
the position is still available to the applicant, and
the visa application was made no more than six months after the nomination of the position was approved.
On 1 November 2016, the nomination application lodged by A AND A (SYDNEY) PTY LTD (the 'nominator'), being the nomination referred to in cl.186.223(1), was refused by a delegate of the Minister. On 25 November 2016, the applicants were invited to comment on the refusal of the nomination. The applicants were invited to comment within 28 days. On 23 December 2016, the applicants authorised recipient responded by email. They attached a completed copy of a Tribunal electronic lodgement form seeking review of the nomination application refusal, and an 'acknowledgement of application' letter from the Tribunal, and an accompanying tax invoice. The applicants also requested the delegate delay making their decision pending the outcome of the merits review application to the Tribunal. However, the delegate noted the nomination approval application had been refused on 1 November 2016, and therefore, the requirements of cl.186.223(2) were not met; and that cl.186.223 was not met.
Next, the delegate assessed whether the criteria for the grant of the Employer Nomination (subclass 186) visa was satisfied with in any other stream within the visa subclass. The delegate assessed the application under the Direct Entry stream. The delegate then noted that pursuant to cl.186.233(2)(a), the position to which a visa application relates must have been nominated and approved under r.5.19(4)(h)(1) or r.5.19(2) as in force on 1 July 2012. Since the correlating nomination only sought to meet the requirements of r.5.19(3), the applicant does not meet cl.186.233, and the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa in the Direct Entry stream are not satisfied.
[10]
The above information is relevant because cl.187.233(3) requires that the nomination made in relation to you by your nominating employer has been approved. If the Tribunal relies on this information it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed.
[11]
You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 27 November 2018.
[12]
By email dated 27 November 2018, the applicant noted the nomination approval decision had been affirmed; that he had resided in Australia since 2008; that he had studied and worked in Australia; that he and his wife are expecting a child in January 2019; he requested the Tribunal reconsider its decision; and that he proposes to pursue judicial review.
The Tribunal acknowledges the applicant's concerns. However, as the delegate's decision to refuse the nomination approval has been affirmed by the Tribunal, cl.186.223(2) has not been met. After considering all the evidence, the Tribunal is also not satisfied that cl.186.223 is otherwise met. Therefore, cl.186.223 is not met.
Next, cl.186.311 requires inter alia that an applicant is a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of that visa. As neither the first named applicant, nor any family member, has satisfied the primary criteria for the grant of the subclass 186 visa, I am not satisfied that cl.186.311 has been met.
The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.
[13]
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
[14]
186.223 (1) The position to which the application relates is the position:
[15]
(a) nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
[16]
(b) in relation to which the applicant is identified as the holder of a Subclass 457 ... visa; and
[17]
(c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
[18]
(3) The nomination has not subsequently been withdrawn.
[19]
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
[20]
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
[21]
(4) The position is still available to the applicant.
[22]
(5) The application for the visa is made no more than 6 months after the Minister approved the nomination.
AI Analysis
Outcomerespondent
Disposition:
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas (28 November 2018).
Next, the delegate assessed the applicant's claims under the Agreement stream. However, as the correlating position was not nominated by an employer in accordance with a Labour agreement, the applicant was determined not to meet cl.186.242. Since that clause was not satisfied, the delegate found the applicant did not meet the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa in the Agreement stream.
Next, the delegate said the dependent applicant had made a valid application combined with the applicant. However, the dependent applicant had not made any claim towards satisfying the primary criteria for the visa. Since neither the applicant nor the secondary applicant had met cl.186.223 & 233 & 242, neither applicant met the secondary criteria in cl.186.311. The Employer Nomination Scheme (subclass 186) visa application was therefore refused.
By s.359A letter dated 13 November 2018 (dispatched by email), the applicant was advised that subject to their comments or response, the following may be the reason, or a part of the reason, for affirming the decisions under review:
On 12 November 2018, the Tribunal affirmed the Department's decision not to approve the nomination in relation to you made by your nominating employer (A & A (SYDNEY) PTY LTD).