LIAO (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The applicant sought review of a decision by the Department of Immigration and Border Protection to refuse their visa application. The core of the dispute revolved around the applicant's eligibility under clause 186.233(3) of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant met the criteria stipulated in clause 186.233(3), specifically concerning the nominated position. This included whether the position was the subject of an approved nomination application under the relevant regulations, whether the nominator was the intended employer, if the nomination had been approved and not withdrawn, if there was any adverse information concerning the nominator, if the position remained available, and if the visa application was lodged within six months of the nomination approval. The Tribunal also considered whether the applicant met the criteria for the Temporary Residence Transition Stream and the Agreement stream, as well as the requirements under clause 186.311 for family members.

The Tribunal affirmed the delegate's decision to refuse the visa. The primary reason for the refusal was that the nomination lodged by Kingstone Building Material Supplies P/L was refused on 31 August 2017, meaning the applicant did not meet clause 186.233(3). As the nomination only sought to meet the requirements of regulation 5.19(4), the applicant also failed to meet the criteria for the Temporary Residence Transition Stream (clause 186.223(1)(a)) and the Agreement stream (clause 186.242). Furthermore, as neither the applicant nor any family member had satisfied the primary criteria for the visa, clause 186.311 was also not met.

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