Lin (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The dispute centred on whether the nomination associated with the applicant's visa application had been approved, a crucial requirement for this visa subclass.

The Tribunal was required to determine if the applicant had satisfied the criteria for the Subclass 186 visa, specifically clause 186.223 of Schedule 2 to the Migration Regulations 1994. This clause mandates, among other things, that the nomination for the position must have been approved by the Minister and not subsequently withdrawn, and that the position must still be available to the applicant.

The Tribunal found that the nomination by Aus-China Study Centre Pty Ltd for the position of Education Advisor had been refused by the Department on 27 September 2017. Although an application to review this refusal was lodged with the Tribunal, it was subsequently withdrawn by the applicant on 28 February 2020, a fact acknowledged by the applicant in her submissions. Consequently, the Tribunal concluded that the nomination had not been approved, and therefore, the applicant had failed to meet clause 186.223(2) and the overall requirements of clause 186.223. The Tribunal also noted that the applicant's acknowledgement of her employer withdrawing sponsorship and her inability to work for the employer since 2016 due to carer responsibilities suggested potential non-compliance with clauses 186.223(3) and (4), but these were not necessary to consider given the primary finding regarding the nomination's approval.

The Tribunal affirmed the decision not to grant the applicant the visa, as the essential criteria for the Subclass 186 visa in the Temporary Residence Transition stream had not been met.