BI (Migration)

The Administrative Appeals Tribunal considered a decision concerning an applicant for a Subclass 186 Employer Nomination Scheme visa, Direct Entry stream, in the role of Corporate General Manager. The applicant was not the subject of an approved nomination for the position and had not undergone a review of a nomination refusal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination in the Direct Entry stream, and for nominations made on or after 1 July 2017, the nomination must identify the applicant. Further requirements include that the nominator must be the prospective employer, the nomination must be approved and not withdrawn, there must be no adverse information known to the Department of Immigration about the nominator or associated persons (or such information must be disregarded), the position must remain available to the applicant, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal reasoned that the applicant failed to satisfy these essential criteria because she lacked an approved nomination and had not sought a review of any nomination refusal. While acknowledging the applicant's significant business success and her claims of contributing to employment and the Australian economy, the Tribunal found that this success was undermined by her ongoing visa issues. The Tribunal noted that the applicant had previously been found to have breached PIC 4020, a finding she was appealing. Ultimately, the Tribunal concluded that the applicant could not succeed in her review as she did not meet the fundamental requirements for the visa.

The Tribunal affirmed the decision under review.