TIAN (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, by Ms. Tian and her family. The Administrative Appeals Tribunal (the Tribunal) was required to review a decision not to grant the visa. The core of the dispute arose from the employer's withdrawal of the nomination application after the visa application had been lodged.

The Tribunal was tasked with determining whether Ms. Tian met the criteria for a Subclass 186 visa under the Temporary Residence Transition stream, specifically clause 186.223 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the nominated position had been approved and had not been subsequently withdrawn, among other requirements.

The Tribunal reasoned that clause 186.223(2) and (3) of the Regulations mandate that a nomination must be approved and must not have been subsequently withdrawn for an applicant to meet the criteria. As the employer had formally withdrawn its nomination application on 7 August 2018, and the applicants had not provided any response or comment to the Tribunal regarding this withdrawal, the Tribunal concluded that the nomination had not been approved and had been withdrawn. Consequently, Ms. Tian, as the primary applicant, did not satisfy the essential requirements of clause 186.223(2) and (3). The Tribunal also noted that there was no evidence that any secondary applicants met the primary requirements for the visa.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.