Dinh (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The dispute arose because the applicant's sponsor, TNR Communications Pty Ltd, had withdrawn its nomination review application. The primary issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning an approved and un-withdrawn nomination for the position of Sales and Marketing Manager.

The Tribunal was required to determine if the applicant's Subclass 186 visa application satisfied the criteria under cl.186.223, which mandates that the nominated position must have an approved nomination that has not been subsequently withdrawn. Additionally, the Tribunal had to consider whether there was any adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was lodged within the prescribed timeframe after nomination approval. The Tribunal also had to assess the applicant's claims regarding a payment of $80,000 to a lawyer and the nominator for visa assistance, and the subsequent withdrawal of the nomination review.

The Tribunal's reasoning focused on the explicit requirement of cl.186.223(3) that the nomination must not have been subsequently withdrawn. Evidence before the Tribunal indicated that the nominator had indeed withdrawn its nomination review application on 13 June 2019. Despite the applicant's detailed explanation of alleged inducements and employment irregularities, the Tribunal found that this withdrawal directly contravened the regulatory requirement for an un-withdrawn nomination. Consequently, the Tribunal concluded that the applicant had not satisfied the essential criteria for the visa.

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