Cheong (Migration)

The Administrative Appeals Tribunal (Migration and Refugee Division) considered an appeal by an applicant concerning a Subclass 186 Employer Nomination Scheme visa. The core dispute revolved around the validity of the nomination for the position the applicant sought to fill, which was crucial for the visa grant. The applicant also requested that the Tribunal refer their case to the Minister for intervention.

The Tribunal was required to determine whether the position nominated in the visa application was the subject of an approved and unwithdrawn nomination, as stipulated by clause 186.223 of the Migration Regulations. This clause mandates that the nomination must have been approved and not subsequently withdrawn, among other conditions, for the visa to be granted. The Tribunal also had to consider the applicant's request for ministerial intervention.

The Tribunal reasoned that a critical requirement for the grant of a Subclass 186 visa is an approved and unwithdrawn nomination. In this case, the evidence showed that the nomination application was withdrawn on 5 July 2016. As a result, the applicant could not satisfy the criterion that the nomination had not been withdrawn. Regarding the request for ministerial intervention, the Tribunal noted that while it could refer cases with unique or exceptional circumstances, it had decided not to do so in this instance. The Tribunal explained that the applicant would have the opportunity to make a direct request for ministerial intervention to the Department, which would then be assessed against the relevant guidelines.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, finding that the applicant had failed to meet the essential nomination requirements.