Liu (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant sought review of a decision by the Department of Immigration and Border Protection to refuse their visa application. The Tribunal was required to determine whether the applicant had satisfied the criteria for the visa, specifically in relation to the nominated position.

The primary legal issue before the Tribunal was whether the applicant could rely on a nomination that had been refused by the Department, and which was not under review. This involved interpreting clause 186.223 of the Migration Regulations 1994, which sets out the requirements for the nominated position in the Temporary Residence Transition stream. The Tribunal had to consider whether a subsequent nomination, or a nomination made by a different employer, could satisfy the criteria if the original nomination was refused.

The Tribunal reasoned that clause 186.223 requires the position to be the subject of an approved nomination in relation to which the visa applicant made a specific declaration in their visa application. It was conceded that the nomination made by the applicant's employer, All Cater (Vic) Pty Ltd, had been refused and was not under review. The Tribunal found that this failure to have an approved nomination meant the criterion could not be satisfied. The Tribunal relied on existing authority, including *Hasan v MIBP* and *Singh v MIBP*, which established that a visa application cannot succeed if the associated nomination has been refused and there is no pending review of that refusal. The Tribunal noted that even a new nomination for the same position by the same employer would not satisfy the requirement, as it would not be the nomination in relation to which the original declaration was made.

Consequently, the Tribunal affirmed the Department's decision not to grant the applicant the Subclass 186 visa, as the essential criteria for the Temporary Residence Transition stream had not been met due to the refusal of the nomination.