Mohammed (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The applicant sought review of a decision not to grant the visa. The Tribunal, constituted by Amanda Mendes Da Costa, was required to determine whether the applicant met the criteria for the visa, specifically clause 186.233 of Schedule 2 to the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 186.233, which pertains to the nomination of a position for the Direct Entry stream. This clause mandates, among other things, that the nominated position must be the subject of an approved nomination that identifies the applicant, that the nominator must be the prospective employer, and that the nomination must not have been withdrawn. Furthermore, the visa application must be made within six months of the nomination's approval, and there must be no adverse information known to the Department regarding the nominator or associated persons, or such information must be reasonably disregarded.

The Tribunal found that the nominator, F&A CORPORATION P/L, applied to nominate the applicant for the position of Internal Auditor on 13 March 2019. However, this nomination application was refused by the Department on 4 October 2019. While the nominator sought merits review of this refusal, their application for review was subsequently withdrawn on 4 April 2023. Consequently, the Tribunal concluded that the nomination relating to the position specified in the visa application had not been approved, and therefore, clause 186.233 was not met. As the applicant had only sought to satisfy the criteria for the Direct Entry stream and had not met these essential requirements, the Tribunal affirmed the decision under review.