Hirayama (Migration)

This matter concerned an appeal by Mr. Hirayama against a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of his Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The core of the dispute revolved around whether Mr. Hirayama's nominator had an approved nomination that had not been withdrawn, as required by the relevant migration regulations.

The Tribunal was required to determine whether Mr. Hirayama met the criteria for the Subclass 186 visa, specifically clause 186.223 of Schedule 2 of the Migration Regulations. This clause mandates that the nomination for the position must have been approved and not subsequently withdrawn. The Tribunal also considered whether Mr. Hirayama had provided sufficient information and commentary in response to its invitation to do so, following the initial refusal of the nomination.

The Tribunal reasoned that the delegate's decision to refuse the nomination had been affirmed by the Tribunal on 4 February 2019, meaning Mr. Hirayama did not have an approved nomination. Despite an invitation to provide further information by 19 February 2019, and subsequent attempts by both Mr. Hirayama's original and newly appointed migration agents to engage with the Tribunal, the correct procedural steps for appointing a new agent and obtaining an extension were not completed. Consequently, the Tribunal concluded that clause 186.223(2) and (3) of the Regulations were not met, as there was no approved and unwithdrawn nomination.

The Tribunal affirmed the decision not to grant Mr. Hirayama the Subclass 186 visa, finding that he had not satisfied the requirements for the Temporary Residence Transition stream.