Zhang (Migration)

The Administrative Appeals Tribunal considered the case of Zhang, who sought an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Direct Entry stream. The core dispute revolved around whether the applicant's position was the subject of an approved nomination, a prerequisite for this visa subclass.

The Tribunal was required to determine if the applicant met the criteria under clause 186.233 of Schedule 2 to the Migration Regulations 1994. This clause mandates that for the Direct Entry stream, the position must be the subject of an approved nomination application, and where the nomination was made on or after 1 July 2017, the applicant must be identified in that nomination. Further requirements include the nominator being the prospective employer, the nomination being approved and not withdrawn, no adverse information being known to the Department, the position remaining available, and the visa application being lodged within six months of the nomination's approval.

The Tribunal found that the nominator's application for approval of the nominated position had been refused by the Department, and this refusal was affirmed by the Tribunal. As the nomination application had not been approved, the applicant could not satisfy the criteria in clause 186.233(3). Consequently, the Tribunal affirmed the decision not to grant the Subclass 186 visa to the primary applicant.

Furthermore, pursuant to clause 186.311, the Tribunal also affirmed the decision to refuse visas to the second and third applicants, identified as the applicant's spouse and child. This was because they did not meet the secondary criteria as family members of a Subclass 186 visa holder, nor was there evidence they met the primary criteria in their own right. The Tribunal therefore affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.