Fan (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically the Temporary Residence Transition stream. The applicant sought to have a decision affirmed that denied the grant of the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 186.223 of the Migration Regulations 1994, which mandates that the position nominated must be the subject of an approved nomination that has not been withdrawn, and that the visa application must be made within six months of the nomination's approval. A related issue was whether there was any adverse information known to the Department concerning the nominator or associated persons, or if such information could be disregarded.

The Tribunal reasoned that a crucial element for the visa grant was an approved nomination. It noted that on 8 March 2017, an application by Z F Investments (Aust) to nominate a Marketing Specialist position was rejected, and this decision was subsequently affirmed by the Tribunal on 31 May 2019. Despite the applicant's representative conceding that an approved nomination was a prerequisite and indicating an intention to appeal the nomination decision to the Federal Circuit Court, the Tribunal stated it was bound to proceed expeditiously and could not speculate on future appeal outcomes. Consequently, as there was no approved nomination, the Tribunal found that the applicant did not satisfy the primary criteria.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants. This was based on the finding that the primary applicant did not satisfy the essential criteria, which in turn meant that the secondary applicants, as family members, could not satisfy the secondary criteria for a visa grant under clause 186.311.