Yau (Migration)

The Administrative Appeals Tribunal considered the case of Yau (Migration), involving applicants seeking Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 Direct Entry stream for the position of Corporate General Manager. The central dispute revolved around whether the applicants were the subject of an approved nomination that had not been withdrawn, a prerequisite for visa grant.

The Tribunal was required to determine if the applicants satisfied clause 186.233 of the Migration Regulations 1994, which outlines the criteria for an approved nomination. This included assessing whether the nominated position was correctly identified, whether the nominator was the intended employer, if the nomination had been approved and not withdrawn, if there was any adverse information concerning the nominator or associated persons, if the position remained available, and if the visa application was lodged within six months of the nomination approval.

The Tribunal's reasoning focused on the fact that the employer's nomination had been refused by the delegate and this decision was affirmed by the Tribunal on 24 June 2020. Following this, the Tribunal notified the applicants of the refusal and invited them to provide comments or a response by 13 July 2020. As the applicants failed to provide any response within the prescribed period, and no extension was granted, the Tribunal applied section 359C of the Migration Act 1958. This section, read with section 360(3), meant the applicants were not entitled to appear before the Tribunal, and the Tribunal proceeded to make a decision based on the available information. The Tribunal affirmed the decision not to grant the visas, finding that the second, third, and fourth applicants did not satisfy clause 186.311 as they were not family members of a primary Subclass 186 visa holder.