Wang (Migration)

This matter concerned an application for an Employer Nomination (Permanent) visa (Subclass 186) in the Temporary Residence Transition stream. The applicant sought review of a decision to refuse the visa. The Tribunal, constituted by Cathrine Burnett-Wake, was required to determine whether the applicant met the criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 186.223 of the Migration Regulations 1994, which requires, among other things, that the nomination for the position has been approved by the Minister and has not been subsequently withdrawn. The Tribunal also considered the eligibility of the applicant's spouse and children for secondary visas under clause 186.311.

The Tribunal reasoned that the applicant's employer's nomination application had been refused by the Department, and this refusal was affirmed by the Tribunal. The applicant conceded that the nomination had not been approved. The Tribunal noted that it had no discretion to waive the requirement for an approved nomination. Applying clause 186.223, the Tribunal found that this essential criterion was not met. Consequently, the Tribunal affirmed the decision to refuse the applicant's visa. Furthermore, as the primary applicant did not meet the visa criteria, their spouse and children also failed to meet the secondary criteria for family members, leading to the affirmation of the refusal for their visa applications as well.