Liu (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant's claim for the visa was based on their occupation as an Air-conditioning and Refrigeration Mechanic. The primary decision under review was affirmed by the Tribunal.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994. This clause mandates that for applicants in the Temporary Residence Transition stream, the position to which the application relates must be the subject of an approved nomination. Further requirements include the applicant being identified in the nomination as a relevant Subclass 457 visa holder, the position being the one declared in the current visa application, the nomination being approved and not withdrawn, no adverse information being known to Immigration, the position remaining available, and the visa application being lodged within six months of the nomination's approval.

The Tribunal reasoned that a critical criterion for the grant of the visa is the approval of the relevant nomination by the Minister or a delegate. The delegate's decision, which was provided to the Tribunal and confirmed by the applicant's oral evidence, indicated that the position nomination had been refused. As no evidence was presented to demonstrate that the applicant was the subject of an approved nomination, the Tribunal concluded that clause 186.223 was not satisfied. Since the applicant had only sought to satisfy the criteria for the Temporary Residence Transition stream and had failed to meet the essential requirement of an approved nomination, the Tribunal affirmed the decision not to grant the visa.