Wu (Migration)

The Administrative Appeals Tribunal (AAT) considered a migration matter involving an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically under the temporary residence transition stream. The dispute arose when the Department of Home Affairs refused the applicant's visa, and the applicant subsequently sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Subclass 186 visa, particularly concerning the nomination of a position. The Tribunal was required to determine if the nomination had been approved and had not been subsequently withdrawn, as stipulated by clause 186.223 of the relevant regulations. This clause outlines several requirements for the nominated position, including that the nomination must be approved by the Minister and not withdrawn, and that the visa application must be made within a specified timeframe after the nomination's approval.

The Tribunal's reasoning focused on the fact that the Department had refused the nomination made by Top Steel Solutions Pty Ltd. Crucially, the nominator had not lodged an application for review of this refusal. Consequently, the Department's decision stood, meaning the nomination was not approved. The Tribunal noted that a requirement for the grant of a Subclass 186 visa is an approved nomination, and as this condition was not met, the applicant could not satisfy the visa requirements. The Tribunal also observed that the applicant had only sought to satisfy the criteria for the Direct Entry stream, not other streams, and had failed to meet the requirements for that stream.

Therefore, the Tribunal affirmed the Department's decision not to grant the applicant the Subclass 186 visa.