Liang (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream, for the position of Café or Restaurant Manager. The nominating employer was Eastern Treasure Pty Ltd. The Tribunal affirmed the decision to refuse the nomination, which in turn impacted the applicant's eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination for the specified position. This required the Tribunal to consider whether the nomination met the requirements of clause 186.233 of the Migration Regulations 1994. Additionally, the Tribunal had to determine if the dependant applicants met the criteria under clause 186.311, which requires them to be members of the family unit of a primary applicant who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria.

The Tribunal reasoned that the applicant was not the subject of an approved nomination because the initial nomination decision had been affirmed. The applicant had been provided with an opportunity to respond to a s.359A letter indicating that the affirmed nomination decision meant she likely did not meet visa criteria, but failed to do so by the specified deadline, nor did she request an extension. Consequently, clause 186.233 was not satisfied. Furthermore, as the primary applicant did not hold a Subclass 186 visa, the dependant applicants could not satisfy clause 186.311, as there was no evidence they were family members of a Subclass 186 visa holder.

The Tribunal affirmed the decision to refuse the grant of the Subclass 186 visas to the applicants.