CHU (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Direct Entry stream, made by an applicant seeking to be employed as a Marketing Specialist. The core dispute revolved around whether the applicant continued to meet the eligibility criteria for the visa, specifically concerning the availability of the nominated position and their ongoing employment with the nominator.

The Tribunal was required to determine if the applicant satisfied clause 186.233 of the Migration Regulations 1994, which outlines the requirements for the Direct Entry stream. This included assessing whether the nominated position remained available to the applicant and if they were still to be employed by the nominator, particularly in light of evidence that the applicant had departed Australia and was no longer employed by the nominator.

The Tribunal reasoned that clause 186.233(5) mandates that the nominated position must still be available to the applicant. The Tribunal had informed the applicant that departmental records indicated their departure from Australia in January 2018, suggesting the position might no longer be available and they might not be employed by the nominator. Despite being invited to provide information to the contrary, the applicant failed to do so. Consequently, the Tribunal was not satisfied that the nominated position remained available to the applicant, and therefore, this criterion was not met.

As the applicant had only sought to satisfy the criteria for the Direct Entry stream and had failed to meet a key requirement, the Tribunal affirmed the decision not to grant the visa.