LIN (Migration)

The Administrative Appeals Tribunal considered a review application concerning a Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream. The primary applicant sought the visa based on an employer nomination lodged by Hans 3D Hitech Industries Pty Ltd. Secondary applicants applied as members of the primary applicant's family unit.

The central legal issue before the Tribunal was whether the nomination of the position met the requirements of clause 186.223 of the Migration Regulations. Specifically, the Tribunal had to determine if the nomination had been approved and had not been subsequently withdrawn, as required by subclauses 186.223(2) and (3).

The Tribunal noted that the nomination was initially refused by the Department. While the nominator applied for a review of this decision, they subsequently withdrew their application for review. The Tribunal then notified the review applicant of its intention to affirm the decision, citing the withdrawal of the nomination as relevant to the requirement for an approved nomination. The applicant failed to provide comments within the prescribed period, leading the Tribunal to proceed to a decision without further steps. The Tribunal reasoned that as the nomination had been withdrawn and not approved, and no other nomination could be relied upon, it was futile to delay the decision. The Tribunal also found that the primary applicant did not meet the primary requirements for the visa, and there was no evidence that the secondary applicants did either.

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