Nong (Migration)

The Administrative Appeals Tribunal considered an application for review of a decision concerning a Subclass 186 Employer Nomination Scheme visa, Temporary Residence Transition stream. The applicant, Mr Weiwei Nong, sought to have a decision affirmed by the Tribunal, which related to a nomination for the position of Computer Network and Systems Engineer. The core dispute revolved around whether the nomination for the position had been approved as required by the relevant migration regulations.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, specifically concerning the approval of a nomination. This clause mandates that the position for which the visa is sought must be the subject of an approved nomination that has not been withdrawn, and that certain conditions regarding adverse information, position availability, and the timing of the visa application relative to the nomination approval are met.

The Tribunal's reasoning focused on the fact that the nomination application made by Willskey Pty Ltd for the position of Computer Network and Systems Engineer, with Mr Nong as the nominee, was refused on 20 February 2018. This refusal was subsequently affirmed by the Tribunal on 8 October 2020. As clause 186.223(2) requires the nomination to be approved, and the nomination in this instance had been refused and its refusal affirmed, the Tribunal concluded that this essential criterion was not met. Consequently, the Tribunal found that Mr Nong did not satisfy the primary visa criterion. The Tribunal also noted that if Mr Nong did not meet the primary criteria, his family members, Mrs Wanxia Chen and Miss Jinyu Nong, would not meet the secondary criterion requiring them to be members of the family unit of a primary visa holder.

The Tribunal affirmed the decision under review, concluding that the applicant did not meet the requirements for the Subclass 186 visa due to the lack of an approved nomination.