Yang (Migration)

This matter concerns the review of a decision by the Department of Home Affairs to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the direct entry stream. The applicant sought to have this refusal set aside by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.233 of Schedule 2 to the Migration Regulations 1994. This clause outlines the criteria for a nominated position in the Direct Entry stream, including that the position must be the subject of an approved nomination, that the nominating employer must be the prospective employer, that the nomination must not have been withdrawn, and that there must be no adverse information concerning the nominator or associated persons, or such information must be disregarded. Additionally, the position must remain available to the applicant, and the visa application must be lodged within six months of the nomination's approval.

The Tribunal noted that the applicant had not responded to invitations to comment on information that would likely lead to the affirmation of the Department's decision. Specifically, the Tribunal had previously affirmed a decision not to approve a nomination made by the nominating employer, Webfire Services Pty Ltd, in relation to the applicant. This prior decision meant the Tribunal could not be satisfied that the current application was subject to an approved nomination as required by clause 186.233(3). The Tribunal also observed that the applicant had not provided any comments or responses to the information presented, nor had they requested an extension of time.

Consequently, the Tribunal concluded that the applicant had failed to satisfy the essential criteria for the Subclass 186 visa in the Direct Entry stream. As a result, the Tribunal affirmed the Department's decision not to grant the visa.