Kuang (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically within the Temporary Residence Transition stream. The applicant sought to have a decision reviewed by the Tribunal, which had affirmed the refusal of the visa. The core of the dispute revolved around whether the nomination of the applicant's position by their employer had been approved by the Minister.

The Tribunal was required to determine whether the applicant met the criteria for the Subclass 186 visa, particularly clause 186.223, which mandates, among other things, that the nomination must have been approved by the Minister and not subsequently withdrawn. The Tribunal also needed to consider whether the position remained available to the applicant and if the visa application was made within six months of the nomination's approval.

The Tribunal reasoned that the nomination application made by Foto Direct Pty Ltd had been refused by the Department on 23 July 2019, and this refusal was not the subject of a review. Despite the Department having invited the applicant to comment on the refused nomination, no response was received. The Tribunal found that, based on the available information, the Minister had not approved the nomination. Consequently, the applicant failed to satisfy clause 186.223, and as no claims were made regarding other visa streams, the Tribunal affirmed the decision under review.