Ali (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The applicant sought review of a decision not to grant the visa. The Tribunal, constituted by Karen McNamara, was required to determine whether the applicant met the criteria for the visa, specifically focusing on the nomination requirements.

The central legal issue before the Tribunal was whether the applicant satisfied clause 186.233 of the Migration Regulations 1994, which pertains to the nomination of a position. This clause requires, among other things, that the nomination for the position has been approved and has not been subsequently withdrawn. The Tribunal also considered whether the applicant had been afforded procedural fairness, particularly in relation to a notice issued under s.359A of the Migration Act 1958.

The Tribunal reasoned that the Department had refused the approval of the nomination made by Australian Multicultural Charity in respect of the applicant on 25 February 2019. As the nomination had been refused, the requirement under cl.186.233(3) that the Minister has approved the nomination was not met. The Tribunal had notified the applicant of this issue and invited comments, but no response was received within the prescribed period. Consequently, the Tribunal proceeded to make a decision without further comment from the applicant, finding that the applicant had failed to satisfy a critical criterion for the visa.

The Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, as the requirements for the Direct Entry stream, particularly the approved nomination, had not been met.