Cao (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186. The primary dispute concerned whether the applicant was the subject of an approved nomination by the sponsoring employer, PTI E Business Pty Ltd. The delegate had refused to grant the visa, finding that the applicant did not meet clause 186.233 of Schedule 2 to the Regulations because the nomination had been refused.

The Tribunal was required to determine if the applicant met the criteria for the Subclass 186 visa, specifically whether the nomination made by PTI E Business Pty Ltd had been approved. The nominating business had sought merits review of the nomination refusal, but this application was dismissed by the Tribunal due to the business's failure to attend a scheduled hearing. Subsequently, the Tribunal invited the applicant to comment on information that could lead to affirming the decision, including the dismissal of the nominating business's review application and the requirement under cl.186.233 for an approved nomination.

The Tribunal reasoned that clause 186.233(3) of the Regulations mandates that the Minister must have approved the nomination. In this instance, the nomination was refused on 4 August 2017, and the subsequent merits review by the nominating business was dismissed on 10 August 2018. The applicant was given an opportunity to respond to the Tribunal's letter of 16 August 2018 by 30 August 2018, but no response was provided. The Tribunal noted that the applicant's representative had only been instructed to obtain a copy of the review application and had forwarded the Tribunal's letter to the applicant, awaiting further instructions. As no response was received within the required period, the Tribunal proceeded to make a decision based on the available evidence.

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