Shi (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, subclass 186 (Employer Nomination Scheme), Direct Entry stream, for the occupation of Marketing Specialist. The applicants sought review of decisions to refuse their visa applications. The core of the dispute revolved around the validity of the nomination lodged in support of the visa applications.

The Tribunal was required to determine whether the applicants could rely on a nomination that had been refused by the Department, and subsequently, whether a new nomination by a different employer could satisfy the visa requirements. Specifically, the Tribunal had to consider the legislative criteria for subclass 186 visas, particularly clause 186.233, which mandates that the position to which the visa application relates must be the subject of an approved nomination and that the visa application must be made within six months of the nomination's approval.

The Tribunal reasoned that the applicants could not rely on the original nomination by Aksara Pty Ltd because it had been refused by the Department and the subsequent appeal to the Tribunal had been withdrawn. The Tribunal held that a subsequent nomination by a different employer, Vision Eye Institute Ltd, could not satisfy the criteria, as it was a requirement that the position be the one in relation to which the declaration was made as part of the visa application. This requirement could not be met by a later nomination, even by the same employer in respect of the same position, let alone a different employer.

Consequently, the Tribunal affirmed the decision not to grant the applicants the visas. The Tribunal also noted that it would be inappropriate for the Minister to consider the matter under his s.351 power due to pending review applications for the most recent subclass 186 visa applications and the associated nomination refusal.