XUE (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 review of a decision to refuse this visa. The Tribunal was required to determine whether the applicant met the criteria for this visa subclass, particularly clause 186.223.

The central legal issue before the Tribunal was whether the applicant satisfied clause 186.223 of the Migration Regulations 1994, which outlines the requirements for a nominated position. This clause mandates, among other things, that the position must be the subject of an approved nomination that identifies the visa applicant, that the nomination has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application is made within six months of the nomination's approval.

The Tribunal reasoned that the applicant had not provided evidence to demonstrate that her visa application was subject to an approved nomination, nor that the nominator had lodged a review application. The Tribunal informed the applicant that without an approved nomination, it could not be satisfied that clause 186.223(2) was met, potentially leading to the affirmation of the delegate's decision. The applicant responded by acknowledging the refusal, highlighting her experience and family circumstances in Australia, and requesting consideration on compassionate grounds to lodge a new application. However, the Tribunal noted that it lacked the discretion to waive the legislative requirements of clause 186.223 and must apply the law as written.

Consequently, as the applicant failed to meet the essential requirements of clause 186.223 for the Temporary Residence Transition stream, the Tribunal affirmed the decision not to grant the visa.