Yoo (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, for the position of Cook. The applicant sought review of a decision to affirm the refusal of their visa application. The core of the dispute revolved around whether there was an approved nomination for the position, as required by clause 186.223 of the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically clause 186.223, which mandates that the position be the subject of an approved nomination that has not been withdrawn, that there is no adverse information concerning the nominator or associated persons, that the position remains available, and that the visa application was made within six months of the nomination approval. The Tribunal also considered whether the applicants met the secondary visa criterion 186.311, which requires them to be a member of the family unit of the primary applicant.

The Tribunal's reasoning focused on the status of the nomination application. Records indicated that the nomination was lodged on 29 June 2017, refused on 10 July 2018, and this refusal was affirmed by the Tribunal on 6 July 2021. The Tribunal had notified the applicants on 9 July 2021 that this affirmed refusal of the nomination was information that might lead to the affirmation of their visa decision, as it meant the nomination was not approved, thus failing clause 186.223(2). The applicants' representative requested an extension of time to respond to this notification, citing the need to finalise their response, but provided no reasons for the delay.

The Tribunal concluded that the decision under review should be affirmed. This was because the nomination for the position of Cook had not been approved, having been refused and that refusal affirmed by the Tribunal. Consequently, the applicant could not satisfy the requirement under clause 186.223(2) that the nomination be approved. The Tribunal was satisfied that the notification inviting comment on this adverse information was properly dispatched.