CHEN (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 visa. The primary applicant, Ms. Chen, sought this visa, with a secondary applicant also involved. The core dispute revolved around whether the nominated position of Market Research Analyst had an approved nomination, a prerequisite for the visa grant.

The Tribunal was required to determine if the requirements of clause 186.223 of the Migration Regulations 1994 were met. This clause mandates, among other things, that the nominated position must have an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination's approval. The Tribunal also had to consider the implications of the employer's unsuccessful attempt to have the nomination approved.

The Tribunal's reasoning focused on the fact that the employer's application for approval of the nomination for the Market Research Analyst position had been refused by a delegate of the Minister. This refusal was subsequently affirmed by the Tribunal itself on 14 November 2019. Consequently, the nomination was not approved, meaning the primary applicant could not satisfy clause 186.223(2). The Tribunal had notified the applicant of this information and invited comment, but no response was received.

As a result of the primary applicant failing to satisfy the criteria for an approved nomination, the secondary applicant, who was a member of the primary applicant's family unit, could not satisfy the requirements of clause 186.311. Therefore, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to either applicant.