Khanna (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the direct entry stream. The applicant was the subject of an approved position nomination, but this nomination was subsequently withdrawn. The applicant's application for review of the decision to refuse the visa was before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994, specifically concerning the nomination of a position. This clause requires, among other things, that the nomination has been approved and has not been subsequently withdrawn, and that the position remains available to the applicant. The Tribunal also considered whether the applicant had provided sufficient information and responded appropriately to invitations to comment on adverse information and attend a hearing.

The Tribunal reasoned that the applicant's nominating employer, Roadtrek Pty Ltd, had withdrawn their nomination application on 1 September 2023, and this withdrawal was accepted by the Tribunal on 19 September 2023. Clause 186.233(3) and (4) of the Regulations stipulate that the nomination must have been approved and not subsequently withdrawn. As the nomination had been withdrawn, this essential criterion for the visa could not be met. Furthermore, the applicant failed to provide a timely response to the Tribunal's invitation to comment on this critical issue, nor did they attend the scheduled hearing.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, finding that the requirements of the direct entry stream, particularly regarding an approved and un-withdrawn nomination, had not been satisfied.