Yao (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The applicant sought to have a decision affirmed which refused the visa application. The core of the dispute revolved around the nomination for the position of ICT Project Manager, which had been refused by the Department due to false and misleading information and adverse information concerning the nominating person.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the nominated position was properly the subject of an approved nomination, whether the employer was the nominator, if the nomination had been approved and not withdrawn, and crucially, whether there was adverse information known to Immigration about the nominator or an associated person that could not be disregarded. The Tribunal also needed to assess if the position remained available to the applicant and if the visa application was made within six months of the nomination approval.

The Tribunal reasoned that the Department had refused the nomination application on 8 June 2017, and this decision was affirmed by the Tribunal on 9 August 2018. Consequently, the requirement under cl.186.233 that the nomination be approved and not subsequently withdrawn was not met. As the applicant had only sought to satisfy the criteria for the Direct Entry stream and had failed to meet these essential requirements, the Tribunal concluded that the decision under review should be affirmed.

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