Yang (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The applicant, Ms. Xiao Yang, sought review of a decision to refuse her visa application. The core of the dispute revolved around whether the applicant met the requirements of clause 186.223 of the Migration Regulations 1994, which pertains to the nomination of a position.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 186.223(2) and clause 186.223(3) of the Migration Regulations. This clause, as applicable, required that the position to which the visa application related be the subject of an approved nomination in the Temporary Residence Transition stream, identifying the visa applicant. It also stipulated that the nomination must have been approved and not subsequently withdrawn, that there be no adverse information known to Immigration concerning the nominator or associated persons, that the position remain available to the applicant, and that the visa application be made within six months of the nomination's approval.

The Tribunal affirmed the decision under review, concluding that the applicant had failed to satisfy the relevant criteria. The Tribunal noted that a prior decision had affirmed the refusal of the employer nomination itself, based on the nominator's failure to satisfy subregulation 5.19(3). Consequently, there was no approved employer nomination in place to satisfy clause 186.223(2). The Tribunal had invited the applicant to comment on this issue, but no response was received. As the applicant had only sought to meet the criteria for the Temporary Residence Transition stream and had not met the essential requirement of an approved nomination, the Tribunal found that clause 186.223 was not met.

Therefore, the Tribunal affirmed the decision not to grant Ms. Xiao Yang the Employer Nomination (Permanent) (Class EN) visa.