Foley (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of Employer Nomination (Permanent) (Class EN) visas, Subclass 186, Direct Entry stream. The primary applicant sought to be employed as a Marketing Specialist, ANZSCO 225113. The secondary applicant was seeking the visa as a member of the primary applicant's family unit.

The Tribunal was required to determine whether the primary applicant met the criteria for the visa, specifically whether the nominated position was approved and met the requirements of clause 186.233. It also had to consider whether the secondary applicant met the criteria as a family unit member, contingent on the primary applicant satisfying the primary criteria. Evidence presented indicated the primary applicant was in prison for a drug-related offence and that the secondary applicant was no longer in a relationship with the primary applicant and had since left Australia.

The Tribunal found that the primary applicant had not met the requirements of clause 186.233, which mandates, among other things, that the nomination be approved, not withdrawn, and that the position remains available. In the absence of formal evidence or submissions from the primary applicant, the Tribunal was satisfied this criterion was not met. Consequently, as the primary applicant did not meet the visa criteria, the secondary applicant, not being a member of a family unit that had met the requirements, also failed to meet the criteria under clause 186.311.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants, as the requirements for the Subclass 186 visa in the Direct Entry stream had not been satisfied.