Jia (Migration)

This matter concerned an application for review of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The applicant sought to satisfy the criteria for this visa subclass, and no claims were made in respect of other visa streams. The core of the dispute revolved around whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, specifically concerning the nomination of the position.

The legal issue before the Tribunal was whether the applicant had satisfied clause 186.233, which requires, among other things, that the position to which the application relates be the subject of an approved nomination. The Tribunal was required to determine if the nomination made by Top Taste Group Pty Ltd in respect of the applicant had been approved and had not been subsequently withdrawn, and if the visa application was made within the prescribed timeframe after the nomination's approval.

The Tribunal reasoned that clause 186.233(3) mandates that the Minister must have approved the nomination. As the nomination made by Top Taste Group Pty Ltd had been refused on 15 April 2021, this essential criterion was not met. The Tribunal further noted that the nomination relied upon must be the one made at the time of the visa application, and it is not possible to rely on a different nomination. Consequently, because the nomination had not been approved, the applicant could not satisfy clause 186.233 and therefore did not meet the requirements for the visa.

The Tribunal affirmed the decision not to grant the applicants the Employer Nomination (Permanent) (Class EN) visas.