Do (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the direct entry scheme. The applicant, seeking to be employed as a computer and network systems engineer by Therapy in the Home Pty Ltd, was the subject of a nomination application that had been refused by the Department. The Tribunal affirmed the refusal of the nomination application on 14 January 2019. Subsequently, the Tribunal notified the applicant of this development and provided an opportunity to respond, which was not taken up.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Subclass 186 visa, specifically clause 186.233 of Schedule 2, which requires an approved nomination. The Tribunal was required to determine if the applicant had satisfied the conditions for the direct entry stream, given that the associated nomination had been refused and this refusal was affirmed on review.

The Tribunal reasoned that clause 186.233(3) mandates that the Minister must have approved the nomination. As the Tribunal had affirmed the refusal of the nomination application by Therapy in the Home Pty Ltd, there was no approved nomination before it. Consequently, the applicant could not satisfy this essential criterion for the direct entry stream of the Subclass 186 visa. The Tribunal also noted that the second applicant, as a member of the primary applicant's family unit, could not be granted the visa if the primary applicant failed to meet the criteria.

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