Wei (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, made by the applicant and a secondary applicant. The dispute centred on whether the nomination for the applicant's position as a Café or Restaurant Manager had been approved, a prerequisite for the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria under clause 186.223 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the nomination for the position had been approved and had not been subsequently withdrawn, and if the visa application was made within the prescribed timeframe after nomination approval. The Tribunal also considered the applicants' request for Ministerial Intervention under section 351 of the Migration Act 1958.

The Tribunal reasoned that the nomination had been refused by the Department on 15 May 2018, and this refusal was affirmed on review by the Tribunal on 1 June 2021. Consequently, the nomination had not been approved, meaning clause 186.223(2) was not satisfied. As the primary applicant failed to meet the essential criteria for the visa, the secondary applicant's application also failed. Regarding Ministerial Intervention, the Tribunal reviewed the provided information, including the second applicant's Australian birth, a car accident that interrupted her employment, and her continued employment with the nominator. However, the Tribunal concluded that these circumstances did not warrant a referral to the Minister as they did not fall within the relevant ministerial guidelines.

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