He (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding a Subclass 186 (Employer Nomination Scheme) visa application in the Direct Entry stream. The primary applicant sought to obtain this visa, with a dependent applicant also included in the application. The core of the dispute revolved around whether the primary applicant had satisfied the criteria for the visa, specifically concerning the nomination of their position.

The Tribunal was required to determine whether the primary applicant had complied with the criteria for a Subclass 186 visa in the Direct Entry stream, as stipulated by clause 186.233 of the Regulations. This clause mandates that the position to which the visa application relates must be the subject of an approved nomination application. The Tribunal also needed to consider whether the nomination had been approved and not subsequently withdrawn, whether the position remained available, and if the visa application was lodged within the prescribed timeframe after the nomination approval.

The Tribunal found that at the time the primary applicant lodged their visa application on 27 June 2017, the associated nomination application made by SHUNKANG INVESTMENTS AUST PTY LTD was pending. However, this nomination was subsequently refused by the Department on 30 October 2017, a decision which the Tribunal affirmed on 3 September 2018. Consequently, the Tribunal concluded that the primary applicant was not the subject of an approved nomination by SHUNKANG INVESTMENTS AUST PTY LTD at the time of the Tribunal's decision, as required by cl.186.233(3). As the primary applicant failed to meet this essential criterion, and no claims were made for other visa streams, the Tribunal affirmed the decision under review. The dependent applicant, Ms Xiaomin Zhou, also failed to meet the visa criteria as her application was contingent on the primary applicant's success.