CHEN (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream. The applicant sought review of a decision to refuse his visa application, which followed the refusal of a nomination application lodged by Greenwest Holdings P/L. The Tribunal was required to determine whether the applicant satisfied the relevant criteria under Schedule 2 to the Regulations, specifically cl.186.233, and whether the nomination by Greenwest Holdings P/L had been granted.

The primary legal issue was whether the applicant met the requirements of cl.186.233 of the Regulations for the Direct Entry stream. This clause mandates that the nominated position must have been approved under specific regulations, that the employer who made the nomination is the person who will employ the applicant, that the nomination has been approved and not withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval. The Tribunal also considered whether the applicant met criteria for the Temporary Residence Transition and Agreement streams, though the applicant had only sought to satisfy the Direct Entry stream requirements.

The Tribunal reasoned that the nomination application lodged by Greenwest Holdings P/L was refused by the Department on 1 November 2017. As the nomination had been refused, the applicant failed to meet cl.186.233 of the Regulations. The delegate's decision to refuse the visa was based on this failure. The Tribunal further noted that the nomination did not meet the requirements for the Temporary Residence Transition stream under cl.186.223(1)(a) as it was not assessed under reg.5.19(3), nor did it meet the requirements for the Agreement stream under cl.186.242 as it was not nominated in accordance with a Labour agreement.

Consequently, as the applicant had only sought to satisfy the criteria for the Direct Entry stream and had failed to meet those requirements, the Tribunal affirmed the decision under review. The Tribunal affirmed the decisions not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.