Paul (Migration)

This matter concerned an application by Mr Paul for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) in the Temporary Residence Transition stream. The dispute arose because the nomination application for the position of Café or Restaurant Manager, which was central to Mr Paul's visa application, was refused by the Department. Although the employer subsequently lodged an application for review of this refusal with the Tribunal, that review application was withdrawn. Mr Paul failed to respond to a request from the Tribunal for comments on this information. The decision was made by Katie Malyon, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether Mr Paul met the criteria for the Subclass 186 visa, specifically clause 186.223 of Schedule 2 to the Migration Regulations 1994, which pertains to the nomination of a position. This clause requires, among other things, that the nomination has been approved and has not been subsequently withdrawn. The Tribunal also considered whether Mr Paul was entitled to appear before it, given his failure to respond to a section 359A invitation.

The Tribunal reasoned that clause 186.223(2) of the Regulations mandates that the nomination must have been approved. As the employer's nomination application was refused and the subsequent review application was withdrawn, this criterion was not met. Furthermore, Mr Paul's failure to respond to the section 359A letter meant he was not entitled to appear before the Tribunal. Since Mr Paul 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 concluded that the decision under review should be affirmed.

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