Maekawa (Migration)

The Administrative Appeals Tribunal considered the case of Maekawa, an applicant for a Subclass 186 Employer Nomination Scheme visa under the Direct Entry stream. The dispute centred on whether the applicant met the criteria for the visa, specifically concerning the nominated position and the financial standing and operational status of the nominator.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.233 of the Migration Regulations, which outlines the requirements for a nominated position in the Direct Entry stream. This clause mandates, among other things, that the nominated position must have been approved, that the nominator is the prospective employer, that there is no adverse information concerning the nominator, and that the position remains available to the applicant. The Tribunal also had to consider the nominator's financial position and whether it was actively operating a business in Australia.

The Tribunal reasoned that while the applicant's former representative had been granted extra time to provide supporting material for the nominator's review application, the nominator had ultimately failed to demonstrate it was actively operating a business in Australia. This conclusion was based on the applicant's concession that "all the income and assets are situated in Japan," which the Tribunal found was not commensurate with actively operating a business in Australia for the purpose of nominating an applicant for a permanent visa. The Tribunal also noted concerns regarding the conduct of the applicant's former representative but was satisfied that the nominator had a reasonable opportunity to present its case.

Consequently, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicant and the other named applicants, as they did not meet the necessary criteria.