Goh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The applicant sought review of a decision by the Department of Immigration and Border Protection to refuse to approve the nomination of a position for the applicant. The Zongde Buddhist Temple Australia had made the nomination.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, specifically concerning the approval of the nominated position. This clause requires, among other things, that the nominated position has been approved and has not been subsequently withdrawn.

The Tribunal reasoned that for an applicant in the Direct Entry stream of the Subclass 186 visa, the nominated position must have been approved under the relevant regulations. The evidence before the Tribunal indicated that the Department had refused the nomination, and the Tribunal itself had affirmed that decision on 2 May 2017. Consequently, the Tribunal found that the nomination had not been approved, meaning the applicant failed to satisfy clause 186.233. As the applicant had only sought to satisfy the criteria for the Direct Entry stream, and this primary criterion was not met, the Tribunal also affirmed the decision in respect of the secondary applicants who applied as family members.