XU (Migration)

This matter concerned an appeal to the Tribunal regarding the Department's decision not to approve a nomination by Phoenix Property Investment Group P/L (trading as "LW Phoenix") for the position of Sales and Marketing Manager (ANZSCO 131112) under the Employer Nomination (Permanent) (Subclass 186) visa, direct entry stream. The Department had refused the nomination application, finding that the applicant, Mr Xunjin Xu, had not met clause 186.233 of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was whether clause 186.233 of Schedule 2 to the Regulations had been satisfied. This clause requires, among other things, that the nominated position be the subject of an approved nomination application, that the nominator be the prospective employer, that the nomination has not been withdrawn, that there is no adverse information known to the Department about the nominator or associated persons, that the position remains available to the applicant, and that the visa application was made within six months of the nomination approval. The Tribunal also considered clause 186.311, which requires an applicant to be a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria.

The Tribunal noted that the nomination application was lodged on 19 June 2017, and refused by the Department on 9 August 2017, on the basis that clause 186.233(3) was not met. The Tribunal reviewed further submissions lodged by the applicant after the hearing, which sought to establish the genuine nature of the position and the applicant's credentials. However, the Tribunal found that as neither the principal visa applicant nor any family member had satisfied the primary criteria for the grant of the subclass 186 visa, clause 186.311 had not been met.

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