Fan (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse subclass 186 Employer Nomination (Permanent) (Class EN) visas to the applicant and his wife. The applicant sought a visa under the Direct Entry stream for the nominated position of 'sales and marketing manager'.

The primary legal issue before the Tribunal was whether the applicant had an approved nomination for the position, as required by clause 186.233 of the Migration Regulations 1994. The Tribunal was also required to consider whether the applicant's wife met the secondary criteria for a subclass 186 visa as a member of the applicant's family unit, or alternatively, the primary criteria in her own right.

The Tribunal noted that it had invited the applicant to provide information regarding an approved nomination pursuant to section 359A of the Migration Act 1958. The applicant failed to provide the requested information or comments within the prescribed period, and no extension was granted. Consequently, the Tribunal proceeded to make a decision without further information, and the applicant was not entitled to a hearing. The Tribunal found that clause 186.233 requires, among other things, that the nominated position be the subject of an approved nomination that has not been withdrawn, and that the applicant be identified in relation to the position where the nomination was made on or after 1 July 2017. As the applicant had not demonstrated an approved nomination, this essential criterion was not met.

The Tribunal affirmed the decision to refuse the subclass 186 visas to both the applicant and his wife. The applicant failed to satisfy the primary criteria due to the absence of an approved nomination, and his wife did not meet the secondary criteria as a family member, nor was there evidence she met the primary criteria independently.