Fang (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Yong Fang, who sought review of a decision to refuse him an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The core of the dispute revolved around whether Mr. Fang met the eligibility criteria for this visa subclass, particularly concerning the requirement for an approved nomination.

The primary legal issue before the Tribunal was whether the applicant, Mr. Fang, was the subject of an approved nomination as required by clause 186.223 of the Migration Regulations 1994. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination that identifies the visa applicant, and that the nomination has not been withdrawn, among other conditions. The Tribunal also had to consider the effect of the Department's invitation to comment on information indicating the refusal of the nomination and the applicant's subsequent failure to respond.

The Tribunal reasoned that a fundamental requirement for the Subclass 186 visa in the Temporary Residence Transition stream is an approved nomination. The evidence presented, including correspondence from the Department and the Tribunal itself, indicated that the nomination submitted by "The Trustee for G P Phillips Family Trust" for Mr. Fang had been refused. Crucially, the nominator did not seek review of this refusal, meaning the nomination was not approved. The Tribunal noted that it had invited Mr. Fang to comment on this adverse information, but he failed to provide a response by the stipulated deadline. As a consequence of this failure to respond, Mr. Fang lost his entitlement to appear before the Tribunal to give evidence and present arguments.

Given that the requirement for an approved nomination was not met, the Tribunal concluded that Mr. Fang did not satisfy a criterion for the grant of the visa. Accordingly, the Tribunal affirmed the decision not to grant Mr. Fang the Employer Nomination (Permanent) (Class EN) visa.