Bao (Migration)

The Administrative Appeals Tribunal considered a decision concerning an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant sought to have the decision to refuse the visa grant set aside. The core of the dispute revolved around the nomination of the position by the applicant's employer, The Trustee for the Cheuk Family Trust.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically whether the nominated position was the subject of an approved nomination that had not been withdrawn, and if there was no adverse information concerning the nominator or associated persons. Additionally, the Tribunal considered clause 186.311, which pertains to secondary applicants being family members of the primary visa holder.

The Tribunal reasoned that a fundamental requirement for the grant of a Subclass 186 visa under the Temporary Residence Transition stream is an approved nomination for the position. The evidence before the Tribunal indicated that the nomination made by The Trustee for the Cheuk Family Trust had been refused, and subsequent review by the Tribunal had affirmed that refusal. Consequently, the applicant was not the subject of an approved nomination, a prerequisite for visa grant. The Tribunal acknowledged the difficult circumstances faced by the applicants, including the potential impact of section 48 of the Migration Act 1958 and the COVID-19 pandemic, but noted it lacked the power to waive the mandatory criteria under clauses 186.223 and 186.311.

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