Tseng (Migration)

The Administrative Appeals Tribunal (AAT) considered a review application concerning the refusal of Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 Temporary Residence Transition stream. The applicants sought to have the delegate's decision to refuse their visa applications set aside.

The primary legal issue before the Tribunal was whether the applicants satisfied the criteria for the grant of a Subclass 186 visa, particularly clause 186.223, which requires that the nominated position be the subject of an approved nomination. The Tribunal also considered the implications of the nominator's application for approval of the nominated position being refused and affirmed on review by the AAT.

The Tribunal reasoned that a fundamental requirement for the grant of a Subclass 186 visa under clause 186.223 is that the nomination for the position must have been approved and not subsequently withdrawn. The Tribunal noted that the nominator's application for approval of the nominated position had been refused by a delegate and that this refusal was affirmed by the AAT. Consequently, the nominated position was not the subject of an approved nomination. The Tribunal also observed that the applicant had not provided further information or requested an extension of time in response to a section 359A notice, and therefore, the applicant was not entitled to appear before the Tribunal.

The Tribunal concluded that the first applicant did not satisfy the primary criteria for the grant of a Subclass 186 visa. As a result, the secondary applicants, who relied on the first applicant satisfying the primary criteria, also failed to satisfy the secondary criteria, specifically clause 186.311. Accordingly, the Tribunal affirmed the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.