CHAI (Migration)

The Administrative Appeals Tribunal considered the case of CHAI, concerning an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Direct Entry stream. The applicant sought to have a decision affirmed that refused to grant the visa.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994, which mandates that the position to which the visa application relates must be the subject of an approved nomination. This includes specific requirements regarding the employer, the nomination's approval status, the absence of adverse information, the continued availability of the position, and the timing of the visa application relative to the nomination approval.

The Tribunal reasoned that the applicant's employer's nomination application was refused by the Department, and this refusal was affirmed by the Tribunal. As the nomination application had not been approved, the applicant could not satisfy the criteria in clause 186.233(3). Consequently, the Tribunal found that the applicant did not meet the requirements for a Subclass 186 visa in the Direct Entry stream.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas. Furthermore, pursuant to clause 186.311, the Tribunal also affirmed the decision to refuse the visa to the second applicant, who was the primary applicant's spouse, as they did not meet the secondary visa criteria and there was no evidence they met the primary criteria independently.