SONG (Migration)

The Administrative Appeals Tribunal (AAT) considered a review application by Mr Jie Song concerning a Subclass 186 Employer Nomination (Permanent) (Class EN) visa, Temporary Residence Transition stream. The dispute arose after the Department of Immigration and Border Protection refused to approve the nomination for the position of Café or Restaurant Manager, lodged by Mr Song's sponsoring employer, Lan Tian (AUST) Pty Ltd. This refusal was subsequently affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant's Subclass 186 visa application could be satisfied, given that the underlying nomination for the position of Café or Restaurant Manager had not been approved. Specifically, the Tribunal had to determine if the applicant could meet the requirements of clause 186.223 of Schedule 2 of the Migration Regulations, which mandates that the position be the subject of an approved nomination.

The Tribunal reasoned that clause 186.223(2) of the Migration Regulations requires the Minister to have approved the nomination. As the Department had refused to approve the nomination, and the Tribunal had affirmed that decision, this essential criterion for the visa could not be met. Despite receiving a response to a section 359A letter from the applicant, which highlighted the nominator's mistakes and planned rectifications, the Tribunal found that the applicant could not satisfy the visa requirements without an approved nomination.

Consequently, the Tribunal affirmed the Department's decision not to grant Mr Song's Subclass 186 visa.