Lin (Migration)

The Administrative Appeals Tribunal considered a review application by ASTN E-Business Pty Ltd concerning a decision by a delegate of the Department of Immigration to refuse to approve a nomination made in relation to the applicant for a Subclass 186 Employer Nomination Scheme visa. The Tribunal had previously determined that it lacked jurisdiction to review the primary decision to refuse the employer nomination application.

The central 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 must be the position identified in the visa application, with specific requirements regarding the timing of the nomination approval and the applicant's identification in that nomination.

The Tribunal reasoned that the nomination lodged by ASTN E-Business Pty Ltd was refused by the Department on 8 June 2017, and the subsequent application for merits review by the company was dismissed by the Tribunal on jurisdictional grounds. Consequently, the applicant could not demonstrate that they were the subject of an approved nomination, a prerequisite for meeting the criteria under cl.186.233. As the applicant had only sought to satisfy the requirements for the Direct Entry stream and had failed to meet this essential criterion, the Tribunal affirmed the decision under review.