1502534 (Migration)

This matter concerned an application for review of a decision by the Department of Immigration and Border Protection to refuse to grant a Subclass 186 Employer Nomination (Permanent) (Class EN) visa. The applicant sought to have the Department's decision set aside and substituted with a decision to grant the visa. The Tribunal, constituted by Brook Hely, was required to determine whether the applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether the applicant satisfied clause 186.233 of the Migration Regulations 1994, which requires, among other things, that the nominated position be approved and that the visa application be made no more than six months after the nomination was approved. Specifically, the Tribunal had to consider the effect of the Department's refusal to approve the nominated position and the Tribunal's subsequent affirmation of that refusal.

The Tribunal reasoned that the applicant's eligibility for the visa was contingent on the approval of the nominated position by Daiso (Australia) Pty Ltd (now Origo & Co Pty Ltd). The Tribunal noted that the Department had refused the nomination application on 5 January 2015, and this decision was subsequently affirmed by the Tribunal on 11 August 2016. Despite being invited to comment on this adverse information, the applicant provided no relevant response. Consequently, the Tribunal found that the nominated position had not been approved, and therefore the applicant failed to meet the requirements of clause 186.233(3) and, by extension, clause 186.233 in its entirety. The Tribunal also noted, for completeness, that the birth of the applicants' child after the delegate's decision did not alter the outcome, as the child could not be included in the parents' application and did not meet the primary visa criteria.

The Tribunal affirmed the decision not to grant the applicants the Subclass 186 Employer Nomination (Permanent) (Class EN) visas.