Tang (Migration)

This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) by Mr. Tang, Mrs. Kong, and Mr. Tang (the applicants) concerning decisions to refuse them Employer Nomination (Permanent) visas, Subclass 186, Temporary Residence Transition stream. The primary applicant, Mr. Tang, sought a visa as a welder, with Mrs. Kong and Mr. Tang seeking visas as his family members.

The central legal issues before the Tribunal were whether the primary applicant met the criteria for the visa, specifically whether the nominated position was the subject of an approved nomination, and consequently, whether the secondary applicants met the criteria as family members of a primary visa holder. The Tribunal was required to consider the provisions of clause 186.223 of the Migration Regulations 1994, which outlines the requirements for an approved nomination in the Temporary Residence Transition stream.

The Tribunal reasoned that a key requirement for the visa grant was that the nominated position must have been approved by the Minister and not subsequently withdrawn. The evidence before the Tribunal indicated that the nomination submitted by The Trustee for G P Phillips Family Trust had been refused by a delegate of the Minister, and this refusal was not subject to review. Consequently, the nomination had not been approved. The Tribunal had invited the applicants to comment on this information, but no response was received by the specified deadline. As the primary applicant could not satisfy the requirement of an approved nomination under clause 186.223(2), the secondary applicants could not satisfy clause 186.311, as they were not family members of a person who had satisfied the primary criteria for the visa.

Accordingly, the Tribunal affirmed the decisions not to grant the Employer Nomination (Permanent) visas to the applicants.