Dou (Migration)

This matter concerned an application for review of a decision by the Department of Immigration to refuse to approve a nomination made by AUDL Recruiting Pty Ltd for a Corporate General Manager position under the Employer Nomination Scheme (Subclass 186) Direct Entry stream. The Tribunal had previously dismissed the nominating business's application for merits review after it failed to attend a scheduled hearing. Subsequently, the Tribunal wrote to the applicant inviting comment on information that could lead to affirming the decision, specifically referencing the dismissal of the nominating business's review and the requirement under cl.186.233 of the Migration Regulations that a nomination must be approved by the Minister.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination by the sponsoring business, as required by cl.186.233 of the Migration Regulations for the Direct Entry stream. This clause mandates that the nominated position must have been approved and not subsequently withdrawn, among other conditions, and that the applicant must be identified in relation to that approved nomination.

The Tribunal reasoned that the nomination by AUDL Recruiting Pty Ltd was refused by a delegate of the Department on 8 June 2017, and the subsequent merits review application by the business was dismissed by the Tribunal on 24 April 2018. The applicant failed to respond to the Tribunal's invitation to comment on the potential reasons for affirming the decision, which included the dismissal of the nominating business's review and the regulatory requirement for an approved nomination. Consequently, the Tribunal concluded that the evidence indicated the applicant was not the subject of an approved nomination, thereby failing to meet the requirements of cl.186.233.

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