Leung (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The applicant sought to have the decision not to grant the visa set aside.

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. This clause outlines the criteria relating to the nominated position, including the requirement for an approved nomination, the identity of the employer, the absence of adverse information, the availability of the position, and the timing of the visa application relative to the nomination approval.

The Tribunal found that the Department had determined not to approve the sponsor's application for the nominated occupation on 19 August 2019, and this decision was final and not subject to review. As there was no approved nomination for the applicant, clause 186.233 was not satisfied. Consequently, the Tribunal was not obliged to consider other criteria for the visa, such as those found in clause 186.234.

The Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, as the essential requirement of an approved nomination under clause 186.233 had not been met.