KIM (Migration)

The Administrative Appeals Tribunal (AAT) considered the review applications of the applicants, who sought to obtain Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Temporary Residence Transition stream. The dispute centred on whether the nomination made by INUS Australia Pty Ltd for the applicants was approved, a prerequisite for visa grant under regulation 186.223(2) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine the validity and effect of an approved nomination for the Subclass 186 visa. This involved considering allegations of fraud and misrepresentation in the nomination process, including claims that the applicant was paid to sponsor the nominee and that supporting documents were false. The Tribunal also had to address its discretion under section 376 of the Migration Act 1958 (Cth) regarding the disclosure of information obtained from an anonymous source.

The Tribunal reasoned that the outcome of the applicants' visa review applications was intrinsically linked to the outcome of the review of the Department's decision to refuse to approve the nomination. It noted that if the nomination was not approved, the visa applications would necessarily fail. The Tribunal exercised its discretion under s 376(3) to disclose the gist of adverse information, which included allegations that INUS Australia Pty Ltd had sold a 457 visa to the applicant with fake documents, manipulated wage and tax records, and received substantial cash payments from the applicant, who allegedly lacked the required skills for the nominated position. Despite these serious allegations, the Tribunal concluded that the requirements for the Temporary Residence Transition stream had not been met.

Consequently, the Tribunal affirmed the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.