Zhang (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), against the refusal of their application. The applicant's migration agent argued that the applicant had no intention of providing misleading evidence and that the imposition of Public Interest Criterion 4020 was unfair, attributing the applicant's predicament to misinformation from a third party, Sun Yi, who had allegedly been arrested for migration fraud. The Tribunal was asked to determine whether the applicant met the requirements of cl.186.233 and cl.186.213(1), specifically Public Interest Criterion 4020(1).

The court was required to consider two primary legal issues. Firstly, whether the applicant met the requirements of cl.186.233, which pertains to the nomination of a position, including the employer being the nominator, the nomination being approved and not withdrawn, the absence of adverse information, the continued availability of the position, and the timing of the visa application relative to the nomination approval. Secondly, the court had to determine whether the applicant satisfied Public Interest Criterion 4020(1), which prohibits the provision of bogus documents or false or misleading information in relation to the visa application or a previous visa held within the preceding 12 months.

The Tribunal found that cl.186.233 could not be met because the nomination lodged by KTN Recruiting Pty Ltd had been refused by the Department of Immigration and subsequently affirmed by the Tribunal. Regarding Public Interest Criterion 4020, the Tribunal noted that the applicant's representative had not presented evidence to establish that the company was lawfully operating or that there were compelling circumstances justifying a waiver of the criterion. The applicant's claim of embracing Christianity in Australia, raised for the first time at the review hearing, was not considered a basis for a protection visa application, and there was no evidence to suggest compelling circumstances that would warrant a waiver of PIC 4020.

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