CHAI (Migration)

This matter concerned an application for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Employer Nomination Scheme, direct entry stream. The primary applicant sought to have a nominated position as a Café or restaurant manager approved, while secondary applicants sought visas as members of the primary applicant's family unit. The Tribunal was required to determine whether the primary applicant met the criteria for an approved nomination, which in turn determined the eligibility of the secondary applicants.

The central legal issue before the Tribunal was whether the primary applicant was the subject of an approved nomination for the Subclass 186 visa. This required an assessment of clause 186.233 of the relevant regulations, which stipulated several conditions for a nomination to be considered approved. These conditions included that the nominated position must be the subject of an application for approval, that the nominator must be the prospective employer, that the nomination must have been approved and not withdrawn, that there must be no adverse information known to Immigration about the nominator or associated persons (or such information must be disregarded), that the position must remain available, and that the visa application must be made within six months of the nomination's approval.

The Tribunal found that the primary applicant did not meet the requirements of clause 186.233 because the decision to refuse the nomination had been affirmed by the Tribunal on 18 September 2018. The primary applicant had been invited to comment on adverse information but did not respond. Consequently, the Tribunal concluded that the primary applicant was not the subject of an approved nomination. As the secondary applicants' eligibility was contingent on the primary applicant holding a Subclass 186 visa granted on the basis of satisfying the primary criteria, and there was no evidence they were members of the family unit of such a visa holder, their applications also failed. The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to any of the applicants.