CHEN (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream, by an applicant seeking to be employed as a newspaper or periodical editor. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant was the subject of an approved nomination and met the requirements of clause 186.233 of Schedule 2 of the Migration Regulations.

The primary legal issue before the Tribunal was whether to grant the applicant's request for an adjournment of his visa application proceedings. The applicant sought this adjournment pending the determination of judicial review proceedings initiated by the nominating business, Sydney Today, in the Federal Circuit Court concerning the Tribunal's earlier decision to refuse the nomination. The Tribunal also had to consider whether the applicant met the criteria for the Subclass 186 visa, specifically the requirement of being the subject of an approved nomination.

The Tribunal reasoned that while it accepted that Sydney Today had lodged an application for judicial review, granting an adjournment for an indeterminate period was not reasonable. The Tribunal noted the significant potential delays in the Federal Circuit Court, estimating that proceedings could take more than a year, possibly two. Given that the applicant could not be considered the subject of an approved nomination until the judicial review was resolved, and the outcome of that review was uncertain, the Tribunal concluded that an indefinite adjournment was inappropriate. The Tribunal affirmed the delegate's decision to refuse the nomination, finding that the applicant had not satisfied the requirements for the Subclass 186 visa in the Direct Entry stream.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa.