LIM (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Direct Entry stream. The applicant sought to have a decision affirmed by the Administrative Appeals Tribunal reviewed. The core of the dispute revolved around whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, which pertains to the nomination of a position.

The Tribunal was required to determine if the applicant satisfied clause 186.233, which mandates, among other things, that the position be the subject of an approved nomination, that the nominator be the prospective employer, that there be no adverse information known to Immigration, and that the visa application be made within six months of the nomination's approval. Crucially, the Tribunal also had to consider the outcome of a separate review concerning the refusal of the employer's nomination.

The Tribunal reasoned that to satisfy clause 186.233(3), the nomination must have been approved. As the Tribunal had previously affirmed the decision to refuse the nomination made by Tian Tian Chinese Restaurant Pty Ltd, this essential criterion could not be met. Consequently, the Tribunal concluded that the applicant could not satisfy the requirements of the Direct Entry stream. The Tribunal then provided the applicant with an opportunity to comment on this proposed reason for affirming the decision, before ultimately affirming the original decision.