Phothivanh (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, in the Direct Entry stream, by Mr Phothivanh. The applicant's eligibility for the visa was contingent upon the approval of an associated nomination made by Wat Lao Buddha Metta Buddhist Society of NSW Inc. The core dispute revolved around whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, specifically the requirement that the associated nomination be approved.

The legal issues before the Tribunal were whether the applicant satisfied the criteria for the Subclass 186 visa in the Direct Entry stream, and in particular, whether the requirement under cl.186.233(3) that the associated nomination be approved had been met. The Tribunal also considered a request for the matter to be referred to the Minister for consideration.

The Tribunal reasoned that clause 186.233(3) mandates that the associated nomination must have been approved for an applicant seeking a Subclass 186 visa in the Direct Entry stream. It noted that the nomination made by Wat Lao Buddha Metta Buddhist Society of NSW Inc. was refused on 20 November 2015, and this decision was affirmed by the Tribunal on 26 February 2018. Despite being invited to provide comments on information relating to the refusal of the nomination, the applicant's representative indicated no comments were to be made. Consequently, as the associated nomination had not been approved, the Tribunal concluded that the applicant did not meet the requirements of cl.186.233.

The Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa. The applicant had only sought to satisfy the criteria for the Direct Entry stream, and as these requirements were not met, the decision under review was affirmed.