Suepsri (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Temporary Residence Transition Stream), against a decision to affirm the refusal of her visa. The applicant had been nominated for the position of Café or Restaurant Manager by CHAT THAI PTY LTD. The core of the dispute revolved around the withdrawal of this nomination by the nominator.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223 of Schedule 2 of the Migration Regulations 1994. This clause mandates, among other things, that a nomination for a position must have been approved and not subsequently withdrawn. The Tribunal also had to consider whether any adverse information concerning the nominator or associated persons was known to the Department, and if so, whether it was reasonable to disregard such information.

The Tribunal found that the nominator, CHAT THAI PTY LTD, had withdrawn its nomination application before a decision was made by the Department. Consequently, the nomination had not been approved, which meant the applicant could not satisfy the requirements of clause 186.223(2) and (3) of the Regulations. The applicant argued that she was an unwitting victim of a family dispute, having been a diligent employee for many years, and that the withdrawal was intended to punish her sister. However, the Tribunal noted that the applicant's personal circumstances and the reasons for the withdrawal, while sympathetic, did not alter the regulatory requirement that an approved nomination must not have been withdrawn.

The Tribunal affirmed the decision not to grant the visa. However, acknowledging the applicant's long-term valuable work and her position as an unwitting victim of a dispute within the owner's family, the Tribunal referred the applicant's case to the Minister for consideration under section 351 of the Migration Act 1958.