Gao (Migration)

This matter concerned an appeal by Mr. Gao against a decision to affirm the refusal of his Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The core of the dispute revolved around whether Mr. Gao met the eligibility requirements for this visa subclass, particularly concerning his employment history and time spent in Australia.

The legal issue before the Tribunal was whether Mr. Gao satisfied the criteria outlined in regulation 5.19(3)(c) of the Migration Regulations 1994. This regulation requires that, in the three years immediately preceding the nominator's application, the applicant must have held a Subclass 457 visa for at least two years and have been employed in the nominated position in Australia for at least two years, on a full-time basis. The Tribunal was specifically required to determine if Mr. Gao's extensive periods offshore during the relevant period impacted his ability to meet these employment and presence requirements.

The Tribunal considered evidence from Departmental movement records indicating that Mr. Gao was offshore for 825 days and in Australia for only 271 days during the three years prior to the nominator's application. The Tribunal advised Mr. Gao of this information and invited him to comment, as it raised concerns about whether he had been employed in Australia in the nominated position for the required two-year period. Mr. Gao initially stated he had misunderstood a question and later explained that his employer had requested him to work in China during this time. However, the Tribunal found that the applicant had not satisfied the requirements of regulation 5.19(3)(c) due to his prolonged absences from Australia, which meant he could not have been employed in Australia in the nominated position for the requisite two years.

Consequently, the Tribunal affirmed the decision not to grant Mr. Gao the Subclass 186 visa, as the requirements for the Temporary Residence Transition stream had not been met.