Lin (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Direct Entry stream. The applicant sought to have a decision of the Department of Immigration, which refused to approve a nomination made by Golden JJ Group Development Pty Ltd for the nominated position of Project Manager, reviewed by the Tribunal. The Tribunal had previously dismissed the nominating business's application for merits review after the business failed to attend a scheduled hearing.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination by the sponsoring business, as required by cl.186.233 of the Migration Regulations. This clause mandates that for the Direct Entry stream, the nominated position must have been approved and not subsequently withdrawn, among other conditions. The Tribunal also considered whether the applicant had provided sufficient information to satisfy the criteria, particularly in light of the previous dismissal of the nominating business's review application and a subsequent invitation to the applicant to comment on information that might lead to affirming the decision.

The Tribunal reasoned that the nomination made by Golden JJ Group Development Pty Ltd was refused by a delegate of the Department on 8 June 2017. Furthermore, the nominating business's subsequent application for merits review was dismissed by the Tribunal on 27 April 2018 due to non-attendance at a hearing. The applicant failed to respond to a letter from the Tribunal inviting comment on information that could lead to affirming the decision, which referenced the dismissal of the nominating business's review application and the requirement for an approved nomination under cl.186.233. Consequently, the Tribunal concluded that the evidence indicated the applicant was not the subject of an approved nomination, a failure to meet a critical criterion for the visa.

The Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.