Banez (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Banez, who sought an Employer Nomination (Permanent) (Class EN) visa, subclass 186, under the Direct Entry stream. The dispute arose when the nomination for his visa was refused due to the nominating employer's failure to comply with sponsorship undertakings. Mr. Banez subsequently requested ministerial intervention, but the Tribunal decided not to refer the matter.

The primary legal issue before the Tribunal was whether Mr. Banez met the requirements of clause 186.233 of the Migration Regulations 1994, specifically concerning the nomination of the position. This clause requires, among other things, that the nominated position be approved, not withdrawn, still available to the applicant, and that the visa application be made within six months of the nomination's approval. Crucially, it also mandates that there be no adverse information known to the Department about the nominator or associated persons, or that such information be reasonable to disregard.

The Tribunal's reasoning focused on the fact that the associated nomination had been refused, and this refusal had been affirmed by the Tribunal on 1 May 2019. As the nomination was refused, Mr. Banez could not satisfy clause 186.233(2), which requires the nomination to have been approved. Despite considering the applicant's case and relevant ministerial guidelines, the Tribunal affirmed the decision not to grant the visa, noting that Mr. Banez could still make a direct request to the Minister.