Chen (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The primary applicant sought to have the decision to refuse their visa application reviewed by the Tribunal, along with two other applicants who were members of their family unit.

The central legal issue before the Tribunal was whether the primary applicant met the criteria for the visa, specifically clause 186.223 of the Migration Regulations 1994, which requires an approved nomination that has not been subsequently withdrawn. The Tribunal also considered whether the secondary applicants met their criteria under clause 186.311, which depends on the primary applicant being granted the visa.

The Tribunal reasoned that the nomination for the primary applicant's position was initially refused and, although a review was sought, that review application was subsequently withdrawn. Consequently, the nomination was not approved and had not been approved at any relevant time. As such, the primary applicant could not satisfy clause 186.223(2), which mandates that the Minister has approved the nomination. Because the primary applicant failed to meet the essential criteria for the visa, the Tribunal affirmed the decision to refuse their application. Furthermore, as the primary applicant was not granted the visa, the secondary applicants, who relied on their status as family members, also failed to meet their criteria under clause 186.311.

The Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.