Chen (Migration)

This matter concerned 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 their visa application. The core of the dispute revolved around the nomination of a position, which had been refused by the Department due to adverse information concerning the nominating person.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.233 of the Migration Regulations. This clause, as applicable, mandates that the nominated position must be the subject of an approved nomination, that the nominator must be the prospective employer, and that the nomination must not have been withdrawn. Crucially, it also requires that there be no adverse information known to Immigration about the nominator or an associated person, or that such information be reasonably disregarded. Furthermore, the position must remain available, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal reasoned that the Department had refused the employer's application for nomination approval on 8 June 2017. Subsequently, the Tribunal dismissed the applicant's application for merits review on 9 August 2018, which meant the decision under review was affirmed. Consequently, the Tribunal found that clause 186.233 was not met because the nomination itself had not been approved. As the applicant had only sought to satisfy the criteria for the Direct Entry stream and had failed to meet the essential requirements, the decision under review had to be affirmed.

The Tribunal affirmed the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.