Xu (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking a Subclass 186 Employer Nomination Scheme visa under the Direct Entry stream. The dispute arose after a delegate of the Department of Immigration refused to approve the nomination made by Sydney TY International Recruiting Pty Ltd in relation to the applicant. The nominating employer subsequently sought a review of this decision, but their application was dismissed by the Tribunal due to their failure to attend a review hearing. The applicant was then invited to comment on information that might lead to the affirmation of the decision, but did not respond.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination by the sponsoring business, as required by clause 186.233 of the Migration Regulations. This clause mandates that for the Direct Entry stream, the nominated position must have been the subject of an approved nomination, and specific conditions related to the employer, the availability of the position, and the timing of the visa application must be met. The Tribunal also considered whether there was any adverse information known to the Department about the nominating entity or associated persons.

The Tribunal reasoned that the nomination lodged by Sydney TY International Recruiting Pty Ltd was refused by a delegate on 14 June 2017, and the subsequent merits review application by the employer was dismissed on 27 April 2018. As the nomination was not approved, and the applicant failed to respond to the Tribunal's invitation to comment on this deficiency, the Tribunal concluded that the applicant could not satisfy the requirements of clause 186.233. Therefore, the applicant had not met the essential criteria for a Subclass 186 visa in the Direct Entry stream.

The Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.