SONG (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 direct entry stream, for a nominated position of Marketing Specialist. The primary applicant sought the visa based on an employer nomination lodged by First Legal Online Pty Ltd. The secondary applicant applied as a member of the primary applicant's family unit. The Department had refused the employer's nomination, and subsequently, the primary applicant's visa application. First Legal Online Pty Ltd initially sought review of the Department's decision not to approve the nomination, but later withdrew this review application. The Administrative Appeals Tribunal (AAT) was required to determine whether the nomination of the position had been approved, as mandated by clause 186.223 of the Migration Regulations.

The Tribunal's reasoning focused on the requirement that the nomination must have been approved by the Minister, as stipulated in clause 186.223(2). The evidence indicated that the Department had refused the associated nomination on 9 August 2016. While the nominating employer applied for review of this refusal, they subsequently withdrew their application for review on 25 June 2018. The Tribunal provided notice to the review applicants under section 359A of the Migration Act, inviting comments on the proposed decision to affirm the delegate's decision, specifically referencing the withdrawal of the nomination review application and its relevance to the approval requirement. As no comments were provided within the prescribed period, the Tribunal applied section 359C and section 360(3), concluding that the review applicants were not entitled to appear before the Tribunal.

Given that the nominating employer's application for review of the nomination refusal was withdrawn, the Tribunal found that the requirement for an approved nomination under clause 186.223(2) was not met. Furthermore, the Tribunal noted that the primary applicant did not meet the primary requirements for the visa, and there was no evidence that the secondary applicant met these requirements either. Consequently, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to either applicant.