Xu (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) visa (Direct Entry stream) by the primary applicant, with his spouse and daughter included as secondary applicants. The Administrative Appeals Tribunal (AAT) was required to determine whether the primary applicant met the criteria for the grant of the visa as set out in Schedule 2 to the *Migration Regulations 1994*.

The central legal issue before the Tribunal was whether the nominated position met the requirements of clause 186.233 of the *Migration Regulations 1994*. This clause mandates that the 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an approved nomination, that the nominator must be the prospective employer, and that the nomination must not have been withdrawn. Furthermore, it requires that the position remains available to the applicant and that the visa application is made within six months of the nomination's approval. The Tribunal also considered the implications of adverse information concerning the nominator or associated persons.

The Tribunal reasoned that a critical prerequisite for the visa grant was the approval of the nomination. It noted that on 9 June 2021, the Tribunal had made a decision in a related AAT case to affirm the decision not to approve the nomination under regulation 5.19. The Tribunal informed the applicant that if the nomination was not approved, he would be unable to satisfy the necessary criteria for the Subclass 186 visa, specifically clause 186.233(3). The applicant was given an opportunity to comment on this information.

As the requirements for the Subclass 186 visa in the Direct Entry stream had not been met due to the non-approval of the nomination, the Tribunal affirmed the decision not to grant the visa to the primary applicant and, consequently, to the secondary applicants as members of the same family unit.