Lee (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the refusal to grant a Subclass 186 Employer Nomination (Permanent) visa to Mr Lee. The dispute arose because a delegate of the Minister had refused to approve the nomination application made by GH Medical Pty Ltd, the employer, which related to Mr Lee's visa application. Consequently, Mr Lee was found not to satisfy the primary criteria for the visa.

The primary legal issue before the Tribunal was whether Mr Lee was the subject of an approved nomination that had not been withdrawn, as required by clause 186.223 of the Migration Regulations. This clause, specifically for the Temporary Residence Transition stream, mandates that the nominated position must have been approved, the applicant identified in the nomination, and the nomination not subsequently withdrawn. Additionally, there must be no adverse information known to Immigration about the nominator or associated persons, or such information must be reasonably disregarded, the position must remain available, and the visa application lodged within six months of the nomination approval.

The Tribunal considered evidence from the Department's case files and heard evidence from GH Medical Pty Ltd, represented by its sole director and shareholder, Mr Lee, who was also the nominee. In a combined hearing, the Tribunal found that GH Medical Pty Ltd failed to demonstrate it had the capacity to employ a sales and marketing manager at the specified salary for the required duration. As a result, the Tribunal concluded that clause 186.223 was not met.

Given that the applicant had only sought to satisfy the criteria for the Temporary Residence Transition stream and had failed to meet the essential requirements of clause 186.223, the Tribunal affirmed the decision not to grant the visa. It followed that any remaining applicants, who were family members, also did not meet the requirements of clause 186.311. The Tribunal therefore affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas.