Tuck (Migration)

This matter concerned an application for review of a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) temporary residence transition stream. The applicant sought to be employed as a building and engineering technician. The core of the dispute revolved around whether the applicant met the requirements of clause 186.223 of Schedule 2 to the Migration Regulations 1994, particularly concerning the nomination of the position.

The Tribunal was required to determine whether the position nominated for the applicant was the subject of an approved nomination that had not been withdrawn, whether there was any adverse information concerning the nominator or associated persons that could not be disregarded, if the position remained available, and if the visa application was lodged within six months of the nomination's approval. A key issue was the applicant's failure to respond to the Tribunal's invitations to comment on information that indicated a prior decision not to approve the nomination made by the employer, Briteway Australia Pty Ltd.

The Tribunal reasoned that clause 186.223(2) requires the Minister to have approved the nomination. The Tribunal had previously affirmed a decision not to approve the nomination in relation to the first applicant. As the applicants had not provided any response or comments to the Tribunal's invitation to address this adverse information, the Tribunal was not satisfied that the nomination had been approved. Consequently, the Tribunal concluded that the applicant had not met the requirements of the Subclass 186 visa in the Temporary Residence Transition stream.

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