He (Migration)

The applicant sought review of a decision not to grant her an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the Direct Entry stream. The dispute centred on whether the applicant had provided false and misleading information in her application, and whether the sponsoring business was lawfully operating in Australia. The applicant contended that the information was provided without her consent by a migration agent and that she had undertaken sufficient probity checks on both the agent and the business. The Tribunal, presided over by Senior Member John Cipolla, was required to determine if the applicant met the requirements of cl.186.233 and cl.186.213(1), specifically Public Interest Criterion (PIC) 4020.

The Tribunal considered two primary issues. Firstly, it examined whether the applicant met cl.186.233, which pertains to the nomination of a position. This criterion requires, among other things, that the nomination has been approved and not subsequently withdrawn, and that the visa application was made within six months of the nomination's approval. Secondly, the Tribunal assessed whether the applicant satisfied PIC 4020, as mandated by cl.186.213(1). This criterion broadly prohibits the provision of bogus documents or false and misleading information to the Minister, an officer, the Tribunal, or a relevant assessing authority in relation to the visa application or a previously held visa.

The Tribunal found that the nomination lodged by the sponsoring business, CFF Finance Management NSW Pty Ltd, had been refused by the Department of Immigration on 8 June 2017, and this decision was affirmed by the Tribunal on 9 May 2018. Consequently, the nomination application had not been approved, meaning cl.186.233 could not be met. Furthermore, the Tribunal concluded that the applicant did not satisfy PIC 4020. The Tribunal reasoned that the applicant's probity checks on the migration agent and sponsoring business were insufficient, and that the applicant had knowingly provided false and misleading information. As no compelling circumstances were found to waive these requirements, the Tribunal affirmed the decision not to grant the visa.