VO (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, in the Temporary Residence Transition stream. The applicant sought review of a decision by the Minister for Immigration and Border Protection to refuse the visa. The nominator, Phuong Vo Australia P/L, had its nomination approval refused by the delegate of the Minister.

The primary legal issue before the Tribunal was whether the applicant met criterion cl.186.223 of Schedule 2 to the Regulations. This criterion requires, among other things, that the nomination for the position has been approved and not subsequently withdrawn, that there is no adverse information known to Immigration about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination approval. The Tribunal also considered whether the applicant met the criteria for the Direct Entry Stream and the Agreement Stream, although the applicant had only sought to satisfy the Temporary Residence Transition stream.

The Tribunal reasoned that the delegate refused the nomination approval on 6 December 2016, and the applicant was invited to comment on this information, which could lead to a refusal of their visa application. No further evidence or submissions were provided by the applicant. Consequently, the delegate found that the applicant had not met cl.186.223. The Tribunal further noted that the applicant did not meet the criteria for the Direct Entry Stream because the nomination did not meet the requirements of r.5.19(4)(h)(i) or r.5.19(2), and did not meet the criteria for the Agreement Stream as the position was not nominated under a Labour agreement.

The Tribunal affirmed the decision not to grant the applicant the visa, as the requirements for the Temporary Residence Transition stream had not been met.