Liu (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 186 Employer Nomination Scheme visa under the Direct Entry stream. The dispute arose when the Department refused to approve the nomination made by the sponsoring employer, BFC Information Technology Pty Ltd, for the nominated position of Business Development Manager. The employer subsequently sought merits review of this decision.

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 the Migration Regulations. Specifically, the Tribunal had to determine if the applicant met the criteria under cl.186.233 of the Migration Regulations, which mandates that the nominated position must have been approved by the Minister and not subsequently withdrawn, among other conditions.

The Tribunal reasoned that the nomination lodged by BFC Information Technology Pty Ltd was refused by a delegate of the Department on 29 September 2017. Furthermore, the employer's application for merits review of this refusal was dismissed by the Tribunal on 2 May 2018, after the employer failed to attend a review hearing. The applicant was invited to comment on information that could lead to affirming the decision, including the dismissal of the employer's review application and the requirement for an approved nomination, but failed to respond. 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 Direct Entry stream of the Subclass 186 visa.

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