Wu (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme under the Direct Entry stream. The applicant sought to have a nomination for the position of ICT Project Manager approved. However, the Department had refused the nomination application, citing false and misleading information and adverse information concerning the nominating person. The applicant sought merits review of this decision.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994. This clause, as applicable, mandates that the nominated position must be the subject of an approved nomination, that the nominator must be the prospective employer, and that the nomination must not have been withdrawn. Crucially, it also requires that there be no adverse information known to Immigration about the nominator or associated persons, or that such information be reasonable to disregard. Furthermore, the position must remain available to the applicant, and the visa application must be made within six months of the nomination's approval.

The Tribunal found that the Department had refused the nomination application on 8 June 2017. Subsequently, on 9 August 2018, the Tribunal dismissed the application for merits review, meaning the decision to refuse the nomination was affirmed. As the nomination itself had not been approved and had effectively been refused, the Tribunal concluded that clause 186.233 could not be met. Since the applicant had only sought to satisfy the criteria for the Direct Entry stream and had failed to meet the essential requirements, the decision under review was affirmed.