Wu (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, specifically within the Temporary Residence Transition stream. The applicant sought to have a decision of the Department of Home Affairs, which refused to grant the visa, reviewed by the Tribunal. The Tribunal, constituted by Mr S Norman, was tasked with determining whether the applicant met the relevant criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 186.223 of the Migration Regulations 1994, which pertains to the Temporary Residence Transition stream. This clause mandates that the position to which the visa application relates must have been the subject of an approved nomination that identified the visa applicant. The Tribunal also considered whether the applicant met the criteria for other streams, namely the Direct Entry Stream and the Agreement Stream, as well as the criteria for family members.

The Tribunal's reasoning focused on the nomination application lodged by the employer, Green Meer P/L. This nomination was refused by a delegate of the Minister on 10 August 2017. The Tribunal noted that clause 186.223(2) requires the nomination to have been approved. As the nomination had been refused, this essential criterion was not met. The Tribunal further found that the applicant did not satisfy the requirements for the Direct Entry Stream, as the nomination did not meet the requirements of regulation 5.19(4)(h)(i) or 5.19(2), but rather sought to meet regulation 5.19(3). Similarly, the Agreement Stream was not met as the position was not nominated in accordance with a Labour Agreement. Finally, the Tribunal observed that no one met the primary criteria for the visa, thus precluding any family members from being granted the visa.

Consequently, the Tribunal affirmed the decision of the Department not to grant the Employer Nomination Scheme (Subclass 186) visa. The applicant's migration agent acknowledged that the visa application "must be affirmed" and indicated an intention to seek Ministerial intervention.