SUN (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of SUN (Migration), where the applicant sought review of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant was identified in a nomination for the position of Customer Service Manager, which was lodged on 30 June 2017 and subsequently refused on 9 August 2017. The applicant, who held a Subclass 457 visa at the time, had his Subclass 186 visa refused on the basis that he was not identified in an approved nomination, thus failing to meet the requirements of cl.186.223 of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was whether the applicant was identified in a nomination for the position of Customer Service Manager that had not ceased. This required the Tribunal to determine if the applicant met the criteria for the Subclass 186 visa, specifically concerning the validity and approval of the nomination. The Tribunal also had to consider the applicant's requests for extensions of time to provide further documentation and whether to grant an oral hearing.

The Tribunal affirmed the decision to refuse the nomination relating to the applicant on 27 February 2019. Subsequently, the applicant was informed of this adverse information and invited to respond. While the applicant requested an extension to provide further documents, the Tribunal granted an invitation to a hearing to provide oral and documentary evidence, extending the response period. Despite receiving some documents, the applicant requested a further extension for financial and tax-related documents, which was refused. The Tribunal reiterated that to be granted the visa, the applicant needed to be identified in a related, un-ceased nomination, and as the nomination had been refused and affirmed, the applicant could not meet the criteria for the visa.

Consequently, the Tribunal concluded that the applicant had not met the requirements for the Subclass 186 visa in the Temporary Residence Transition stream. As no claims were made in respect of other visa streams, and the essential criteria for the nominated stream were not satisfied, the Tribunal affirmed the decision under review.